The main legal point established in the judgment is the determination of joint ownership and the validity of the Defendant No. 1's claim of exclusive ownership.

JUDGMENT :

D. DASH, J.

1. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) has assailed the judgment and preliminary decree dated 11.07.2017 and 20.07.2017 respectively passed by the learned District Judge, Keonjhar in RFA No. 12 of 2015.

By the same, the Appeal filed by the Appellant under section 96 of the Code has been dismissed and thereby the judgment and preliminary decree passed by the learned Senior Civil Judge, Senior Division, Keonjhar in C.S. No. 114 of 2012 have been confirmed.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. The Plaintiff’s case is that the Defendant No. 1 is his brother and they are the two sons Late Sudarsan Mahanta. The Plaintiff and his brother Defendant No. 1 had jointly purchased the land measuring Ac. 0.47 decimals from its owner namely Harihar Panigrahhi. While so possessing the land as its owner they had sold Ac. 0.18 decimal out of the purchased land and thereafter the balance land of Ac. 0.29 decimal remained with them. It is stated that there has been no partition between the two brothers by metes and bounds in respect of that property. The Defendant No. 1 is residing over the suit land in the house jointly constructed by them whereas the son and daughter-in-law of the Plaintiff have been residing on another partition of the residential house when the Plaintiff used to reside in the native village at Shyamasundarpur.

It is alleged that taking advantage of the absence of the Plaintiff, the Defendant No. 1 sold Ac. 0.075 decimals of land to Defendant No. 2 by registered sale deeds dated 07.12.1998 and 18.02.2005. The sale deeds are said to have been executed by Defendant No. 1 without the consent and the knowledge of the Plaintiff. So it is said that those transactions are illegal, void and not binding on the Plaintiff. It is further stated that behind the back of the Plaintiff, Defendant No. 2 has mutated the purchased land in his name. So the Plaintiff filed the suit for partition, claiming his legitimate half share over the said properties.

4. The Defendant No. 1 in his written statement while not disputing the fact that he with the Plaintiff had purchased Ac. 0.47 decimal of land, however, states that after said purchase, it is he who alone possessed the same on his own right to the knowledge of the Plaintiff and all others. It is further stated that on the request of the Plaintiff, the Defendant No. 1 had sold Ac. 0.18 decimal of land but the entire consideration amount for the said transaction had been taken by the Plaintiff without a pie being taken by the Defendant No. 1 and this was with an understanding and assurance from the side of the Plaintiff that in respect of remaining Ac. 0.29 decimal, he would have no claim and that would completely be left to the Defendant No. 1 who would own the same exclusively. The Defendant No. 1 thus admits to have sold from out of that remaining land, the land measuring Ac. 0.075 decimal to the Defendant No. 2 on receipt of valuable consideration in order to meet the expenses for the marriage of her daughter.

The Defendant No. 2 in his written statement claims to have purchased the land measuring Ac. 0.075 decimals from Defendant No. 1 and it is stated that she has been residing in a house constructed by her over the said purchased land.

5. On the above rival pleadings, the Trial Court framed as many as six issues. Answering the crucial issues that is Issue No. 4 and 5, upon examination of evidence and their evaluation, the case/claim of the Defendant No. 1 that after sale of Ac. 0.18 decimal of land from out of the total purchased land of the Plaintiff and Defendant No. 1, he remained the exclusive owner of the rest land from which he has sold a part to Defendant No. 2 has been answered in the negative. It has been further said that in respect of the rest of