A plaintiff must prove interest in joint family property to maintain a partition suit; failure to do so results in dismissal.

JUDGMENT :

Ananda Chandra Behera, J.

1. This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellants in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.65 of 1993 and appellants before the First Appellate Court in the First Appeal vide T.A. No.112 of 1996.

The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.65 of 1993 and respondents before the First Appellate Court in the 1st Appeal vide T.A. No.112 of 1996.

3. The suit of the plaintiffs (appellants in this 2nd Appeal) against the defendants (respondents in this 2nd Appeal) vide T.S. No.65 of 1993 was a suit for partition, repurchase and permanent injunction.

4. As per the averments made by the plaintiffs in their plaint in nutshell was that, the properties described in Schedule “A” of the plaint are the suit properties and the genealogy described in Para No.2 of the plaint is the family pedigree of the plaintiffs and defendant No.2.

As per the genealogy given by the plaintiffs in Para No.2 of their plaint, Fakira Das was the father of the plaintiffs and defendant No.2. The said Fakira Das died leaving behind defendant No.2 and plaintiffs as his four sons. As such, the plaintiffs and defendant No.2 are four brothers. The defendant No.2 is the eldest brother of the all the three plaintiffs.

The plaintiffs and defendant No.2 belong to “Gouda” by caste. They were doing milk business. Out of the joint contribution made by their parents and defendant No.2, the suit properties described in Schedule “A” of the plaint was purchased from one Babaji Kheelar in the name of the defendant No.2 through sale deed No.2041 dated 19.03.1951 on payment of consideration amount of Rs.95/- while the defendant No.2 was aged about 22 years. As such, the Schedule “A” suit properties were purchased from the joint family income of the plaintiffs for the benefit of their joint family. After purchasing the suit properties on dated 19.03.1951, five thatched rooms were constructed thereon through mud and clay for the joint family of the plaintiffs and defendant No.2. The houses standing on the suit properties belong to the joint and undivided family of the plaintiffs and defendant No.2. The suit properties have not been partitioned as yet between them (plaintiffs and defendant No.2) through any metes and bounds partition. In order to grab the suit properties alone illegally, the defendant No.2 fraudulently sold away the suit properties to the defendant No.1 without any consideration amount and without transfer of any title of the suit properties in favour of the defendant No.2 through a nominal registered deed of sale bearing No.1434 dated 15.09.1992. So, they (plaintiffs) are not bound by the said collusive and fraudulent deed dated 15.09.1992 executed by the defendant No.2 in respect of the suit properties in favour of the defendant No.1. The defendant No.1 is a stranger to the family of the plaintiffs and defendant No.2. For which, the defendant No.1 being the stranger to their family, he (defendant No.1) is not entitled to possess their undivided dwelling house i.e. the suit properties in contravention of Section 44 (2) of the T.P. Act, 1882. The above sale deed No.1434 dated 15.09.1992 executed by the defendant No.2 in favour of the defendant No.1 in respect of the suit properties is void, invalid, inoperative and the same is not binding upon them (plaintiffs). For which, the defendant No.1 has no right, title, interest and possession over the suit properties. So, they (plaintiffs) have right to repurchase the 1/4th share of the defendant No.2 in the suit properties from the defendant No.1. After knowing about the execution of the sale deed dated 15.09.1992 by the defendant No.2 in favour of the defendant No.1 in respect of the suit properties, the plaintiffs requested the defendant No.2 for partition of the suit properties, to which, the defendant No.2 did not agree. For which, the plaintiffs filed