The burden of proving prior partition lies on the claimant, and an actual division of the property by metes & bounds is not always necessary to constitute a partition.

JUDGMENT :

A.S. Naidu, J. - The Judgment & decree dated 22.3.1999 passed by the Learned District Judge, Keonjhar in T.A No. 29 of 1993 reversing the Judgment & decree dated 16.1.1993 passed by the Learned the then Sub- ordinate Judge, Keonjhar in T.S No. 3 of 1988, is assailed in this Second Appeal filed by Defendants of the said suit.

2. Respondent No. 1, as Plaintiff, filed T.S No. 3 of 1988 praying for declaration of her right, title & interest over the suit "C & C-1" schedule of lands for confirmation of possession & in the alternative for recovery of possession & for permanent injunction restraining the Defendants from interfering & disturbing in her possession over the suit scheduled lands & also for declaration that the alienation of "D" schedule lands made in favour of Defendant No. 1(f) by Defendant No. 1 (a) is invalid.

3. One Panu Barik was originally the sole Defendant. After his death the present Appellants were substituted as his legal heirs & successors. Bereft of unnecessary details the short facts which are necessary for effectual adjudication are as follows :

4. According to the Plaintiffs, Chintamani was the common ancestor of the parties. He was the recorded owner of lands more-fully described in "B" schedule of the plaint. Benudhar & Panu were his two sons. Plaintiff was the only daughter of Benudhar, whereas Defendant Nos. 1 (a) to 1 (e) were the legal heirs of original Defendant Panu Barik & Defendant No. 1(f) was the wife of Defendant No. 1 (a). As per the plaint case, after the death of Chintamani his two sons, i.e., Panu & Benudhar amicably partitioned the properties situated in three villages, i.e., Jamunapasi, Chandaposi & Sakarpul in the year 1972. In the said partition lands appertaining to "C & C-1" schedule were allotted to Benudhar, the father of the Plaintiff, & was in exclusive possession of the same. Benudhar died in the year 1971. After his death Plaintiff possessed the lands left by her father & also occupied the dwelling house. Unfortunately, during current settlement the lands of village Jamunaposi & Sankarpur were recorded jointly in the name of Plaintiff & original Defendant Panu, though separate 'patta' had been issued in respect of the lands situated at village Chandaposi . Taking advantage of such joint recording, it was alleged, Panu with his two sons, created disturbances in the possession of the Plaintiff. Consequently the Plaintiff was constrained to file the suit.

5. Defendant No. 1(f) the widow of Panu did not contest the suit. Defendant Nos. 1,(a) to 1 (e) filed a joint written statement challenging maintainability of the suit on the ground of limitation, non-joinder of parties, res-judicata, estoppel etc. In the written -statement they have admitted that there was amicable partition between Panu & Benudhar 30 years back & by convenience parties were possessing separate parcels of lands. However, according to them there was never any partition by metes & bounds. It was further averred in the written statement that Plaintiff & late Panu Barik had received compensation amount jointly from the Railways towards the lands which were acquired in Land Acquisition proceedings. In short, according to the Defendants as there was no partition by metes & bounds the suit in the present form is not maintainable.

6. On the basis of the pleadings the Trial Court framed as many as seven issues. In order to substantiate her case, the Plaintiff got 3 witnesses examined & exhibited 9 documents, whereas the Defendants got 5 witnesses examined & exhibited 6 documents. The Trial Court after discussing the evidence in extenso answered all the issues in favour of the Plaintiff except issue Nos. 1 to 5, i.e., with regard to maintainability of the suit & declaration of right, title & interest of the Plaintiff over "C & C-1" schedule of lands, Relying upon the oral & documentary evidence it was held that the lands were never partitioned by metes & bounds & the suit for declaration of Plaintiff s right, title