The main legal point established in the judgment is the procedure for including additional properties in a partition suit, requiring the defendants to treat their written statement as a counter claim, pay court fees, and have the trial court dispose of the suit in respect of the additional properties only.

JUDGMENT :

A.K. Rath, J.

The legal heirs of defendant no.2 are the appellants against confirming judgment in a suit for partition.

2. Plaintiffs-Respondents nos.1 to 3 instituted the suit for partition. The case of the plaintiffs was that Dasarathi Sahu had two sons, namely, Khetramohan and Chadramohan. Khetramohan died leaving behind four sons. Chandramohan died leaving behind the plaintiffs and defendant nos.5 and 6. There was a partition between the parties on 3.4.1954 by registered deed of partition except the homestead property. The suit plot is a tank. The same is a part of the joint homestead of the parties. Plot no.508 belongs to P.W.D. The same was taken by Chandramohan on lease. There is an old house on it since the time of Khetramohan. The tank, house as well as the properties appertaining to Plot no.493, khata no.282, area Ac.0.05 dec. of mouza-Khandahara, Plot nos.492,494 and 502, area Ac.0.11 dec., Ac.0.06 dec. and Ac.0.03 dec. respectively under khata no.283 of mouza-Khandahara have not been partitioned. They have half share in it. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. The defendants filed written statement pleading inter alia that the suit for partition is not maintainable, since all the properties have been partitioned except the ancestral house, house standing on plot no.506 and the suit tank. These properties are the self-acquired properties of defendant no.2. The properties appertaining to plot nos.492,493,494 and 502 are not the joint family property. The same has been dedicated to Lord Shiva. The specific case of the defendants is that the properties described in 'Ga' schedule of the written statement have been left out. A prayer has been made for partition of 'Ga' schedule property described in the written statement.

4. On the interse pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the license in respect of plot no.506 was issued by the P.W. Department. The license was renewed from year to year. Khetramohan Sahu, father of defendant nos.1 to 4, had constructed a house over the plot. Defendant no.2, had constructed a new house over the land purchased by him. He was living in that house with his family members. The house standing over plot no.506 is the ancestral house of the parties. The tank situated over plot no.461 is not the self-acquired property of defendant no.2. The same is the joint family property. The suit for partition is maintainable. It is apt to state here that during pendency of the suit, the defendant no.2 died, whereafter the legal heirs have been substituted. Felt aggrieved, the legal heirs of defendant no.2 filed S.J.A. No.37/69 of 1983/82-I before learned Additional District Judge, Balasore, which was eventually dismissed.

5. The second appeal was admitted on the following substantial question of law.

"Whether the properties list of which are set out in the written statement for partition on the allegation that the same has been left out by the plaintiffs were liable for partition without payment of separate court fee by the defendants and without setting up the counter claim for the purpose. In such circumstances, was the court justified to dispose of the suit for partition in respect of the properties set out in the plaint alone."

6. Heard Miss Sagarika Sahoo, learned Advocate, on behalf of Mr. Asoke Mukherji, learned Senior Advocate for the appellants. None appears for the respondents.

7. Miss Sahoo, learned Advocate for the appellants, submits that the defendant no.2 filed written statement stating that the property described in 'Ga' schedule of the written statement are the joint family property. A prayer was made for partition of 'Ga' schedule property. But then, no issue was framed. In the first appeal, the defendants raised the said plea. The appellate court negatived the contention on the ground that no counter claim has