JUDGMENT : 1. Respondent No. l, as Plaintiff, filed Title Suit No. 9, of 1993 in the court of the Civil Judge (Senior Division), Baripada for partition of the properties mentioned in Schedule-A to G of the plaint claiming 1/3rd share therein. The case of the Plaintiff-respondent No. 1 as narrated in the plaint is that Schedule A to G properties are the joint family properties notwithstanding the fact that Schedule A land stands recorded in the name of Defendant No. 2, Schedule-B properties stand recorded in the name of the Plaintiff, Schedule C & D properties stand recorded in the name of Defendant No. 1, Schedule-E land stands recorded jointly in the name of the Plaintiff and Defendant Nos. 1 to 3 and Schedule-F land is the joint family residential house. It was also pleaded that Defendant No. 1 got a considerable amount of land towards his share in the partition between himself and his brothers and as 'Karta' of the joint family, he transferred some of the lands as per Schedule J to outsiders. Similarly Plaintiff also sold certain properties as mentioned in Schedule-K and Defendant No. 2 sold certain properties mentioned in Schedule-L to outsiders. Plaintiff-respondent No. 1 alleged that though no partition has been effected, Defendant No. 2 in collusion with Defendant; No. 1 got Schedule-A land recorded in his name, Schedule-C land in the name of Defendant No. 1 and Schedule-D land in the name of the Plaintiff and also got some settlement papers signed by the Plaintiff by playing fraud. Further pleading was that Schedule D & E properties were acquired out of the joint family nucleus and the house on the same was also constructed out of the joint family funds. Since the parties are no more in cordial term, Plaintiff prayed that the property of the joint family to be partitioned and 1/3rd share therein be given to him. 2. Respondent No. 2 Defendant No. 1 entered appearance and filed written statement supporting the case of the Plaintiff. Defendant Nos. 2 and 3 filed written statement contesting the claim of the Plaintiff, mainly on the plea that in the year 1971 there was a previous partition of the joint family properties mentioned in the Schedules and the shares of the respective parties were carved out. Defendant Nos. 2 and 3 filed written statement contesting the claim of the Plaintiff, mainly on the plea that in the year 1971 there was a previous partition of the joint family properties mentioned in the Schedules and the shares of the respective parties were carved out. They pleaded that out of 45 Mana' of land, which Defendant No. 1 got in partition with his brothers, 11 Mana' of land were sold by him to different persons without any legal necessity and those properties having not been brought to the common hotchpotch and some of the purchasers having not been made parties, the suit is bad for non-joinder of necessary parties and properties. It was further claimed by Defendant Nos. 2 and 3 that they are both service holders and out of their income, they acquired Schedule D & E properties and constructed the residential house on Schedule-D property, but they left Schedule-E land and the house thereon to the Plaintiff as he had no income. Defendant Nos. 2 and 3 alleged that after partition in the year 1971, the Plaintiff sold most of the properties, which fell to his share and thereafter filed the suit for partition in connivance with Defendant No. 1 to grab some more properties. Defendant Nos. 2 and 3 accordingly prayed for dismissal of the suit. 3. Defendant Nos. 4, 6 and 7 filed written statement claiming that they purchased the lands from Defendant No. 1, who, as 'Karta' of the joint family, sold the lands for legal necessities. The G.A.L. for the minor Defendants 20 and 21 filed written statement claiming that they are the bona fide purchasers of the land. Rest of the Defendants did not file any written statement and were set ex parte: 4. From the pleadings of the parties, learned Civil Judge framed as many as 11 issues and accepted evidence of the parties. Plaintiff examined 13 witnesses including himself and Defendant No. 1 and produced documents, which were marked as Exts. 1 to 66. Defendant Nos. 2 and 3 examined four witnesses including themselves and produced documents, which were marked as Exts. A to H. After considering such evidence, learned Civil Judge came to hold that there was no previous partition in the family, that the suit properties are joint although some of the properties have been recorded separately and individual parties sold lands to different persons. A to H. After considering such evidence, learned Civil Judge came to hold that there was no previous partition in the family, that the suit properties are joint although some of the properties have been recorded separately and individual parties sold lands to different persons. The Court accordingly, decreed the suit preliminary on contest against Defendant Nos. 2 and 3 with cost and against Defendant Nos. 1, 20 and 21 without cost and ex parte against other Defendants without cost. It was ordered that the suit properties as per Schedule-A to E and G are liable for partition and the Plaintiff, Defendant No. 1 and Defendant No. 2 are each entitled to get 1/3rd share therein and that the sales effected by Plaintiff and Defendant No. 2 would be adjusted in their respective shares. Aggrieved by the said judgment and decree, Defendant Nos. 2 and 3 have filed this appeal. 5. Learned Counsel for the Appellants argues that though the Defendants-appellants tendered evidence to substantiate the issue that land sold by Defendant No. 1 was not for legal necessity, but the trial court unreasonably rejected that plea of the Defendants-appellants. He argues that in the event land sold by Defendant No. 1 are apportioned to his share while making a partition of the Schedule A, Band C properties, then the Appellants have no grievance at all for 1/3rd share out of the same. His further submission is that so far as Schedule D and E properties are concerned, i.e., the homestead land at Baripada and the house constructed thereon the trial court did not at all consider the oral and documentary evidence adduced by the Appellants and going by the records prepared in the Revenue Department a decree for partition of the same has been granted amongst the coparceners. Alternatively he argues that if Schedule-D homestead land is divided amongst the coparceners by allotting 1/3 rd share to each of them, then also Schedule E homestead land cannot be divided by apportioning 1/3rd share to them in as much as, according to the compromise petition and the decree marked Ext.A the Plaintiff and Defendant Nos. l to 3 were parties to the compromise as against Lambodhar Dandapata and therefore, out of the said property Defendant Nos. 2 and 3 each are entitled to 1/4th share in view of the terms of the compromise. 6. l to 3 were parties to the compromise as against Lambodhar Dandapata and therefore, out of the said property Defendant Nos. 2 and 3 each are entitled to 1/4th share in view of the terms of the compromise. 6. Learned Counsel for Plaintiff-respondents on the other hand argues that the findings on each of the issues has been recorded by the trial court on proper appreciation of evidence and therefore the claim for apportioning the transferred land in favour of the Defendant No. 1 is not permissible when Defendant No. 1 as the 'Karta' of the family alienated the property to different purchasers because of the legal necessity of the joint family. Similarly, he argues that the evidence on record sufficiently proves that Schedule-D homestead land was purchased by the family in the name of Defendant No. 1 and therefore the Plaintiff, Defendant Nos. l and 2 each are entitled to 1/3rd share out of the same. He argues that the similar analogy would apply to Schedule E homestead land at Baripada, in as much as Defendant No. 3 was merely a party to that proceeding being the wife of Defendant No. 2 and not for having any independent right, title, interest Or possession over the said property. Accordingly he prays to dismiss the appeal. 7. After hearing at length in the above-indicated submissions, perusing the pleadings of the parties and the evidence on record, we do not find any reason to differ with the factual findings recorded by the trial court that Defendant No. 1 alienated certain properties for the legal necessity of the family and he had the legal competency to make such an alienation being the 'Karta' of the family. We also find on record that Defendant Nos. 2 and 3 (appellants) have not been able to prove a case of partition in the year 1971 amongst the coparceners. The residue thereof leads to irresistible conclusion that the property in Schedule A, B, C and F being the joint family property, that should be available for partition amongst the coparceners, i.e., Plaintiff, Defendant No. 1 and Defendant No. 2. Since Schedule-D property was acquired while the joint family was continuing and it was thrown to the common hotchpotch not only for construction of house but also for enjoyment of the house by the parties, Schedule-D property is also partitionable amongst the coparceners. 8. Since Schedule-D property was acquired while the joint family was continuing and it was thrown to the common hotchpotch not only for construction of house but also for enjoyment of the house by the parties, Schedule-D property is also partitionable amongst the coparceners. 8. So far as Schedule-D property is concerned, the claim of Defendant Nos. 2 and 3, i.e., the Appellants about self-acquisition, as rightly found by the trial court, is not proved, in as much as by mere filing a bunch of receipts of the Municipality the case of self-acquisition cannot be substantiated when the sale deed indicates that the land was purchased by Defendant No. 1. 9. So far as the Schedule-E property is concerned, we find that the trial court has not properly considered the evidence on record vis-avis the rightful claim of the parties. Schedule-E property is a piece of homestead land which the Defendant Nos. 2 and 3 claimed to have encroached together with the Plaintiff and Defendant No. 1 and such rightful contention was challenged by Lambodar Dandapata, Plaintiff in Title Suit No. 9", of 1993. The latter filed the Title Suit for declaration of title and possession. It appears from the compromise petition and the decree, Ext.A that on receipt of consideration amount of a sum of Rs. 4,000/- (four thousand) Lambodar Dandapata (plaintiff in that suit) relinquished all his claim over the property, of which Schedule-E forms a part. The decree therein provides that the Defendants have right, title, interest and possession over that land. Therefore, Defendant No. 3 - the wife of Defendant No. 2 cannot be denied a share when the decree of the civil court confers such a right on her. Argument of the Plaintiff respondents that she was added as Defendant merely because she is the wife of Defendant No. 2, is not substantiated from any acceptable evidence on record. Therefore, we modify the decree of the court below with respect to Schedule-E property by stating that the Schedule-E property be divided into four shares allotting one share each to the Plaintiff and Defendant Nos. 1 to 3 in the present case. At the time of final decree it may be worked out as to how that property is to be divided for convenience of each of the parties and that shall be considered by the trial court unless the parties resolve that dispute amicably. 10. 1 to 3 in the present case. At the time of final decree it may be worked out as to how that property is to be divided for convenience of each of the parties and that shall be considered by the trial court unless the parties resolve that dispute amicably. 10. It may also be pointed out here that so far as Schedule-G property is concerned, that is the sketch map of the house constructed on the homestead land at Baripada, covered by Schedule D and E properties. Therefore, once there is an order for partition of Schedule D and E properties in the above indicated manner, there is no necessity of issuing any further direction for partition of Schedule-G property. 11. So far as Schedule-F property is concerned, there is no dispute that it should be partitioned. The alternative contention of the Appellants is to relinquish it in favour of the Plaintiff, provided the latter relinquishes his share and interest over Schedule-D property is a matter which can be taken into consideration by the trial court in course of the final decree proceeding, provided further that they amicably offer such a proposal. Otherwise, the final decree proceeding in respect of partition be taken up as per the decree passed by the trial court in respect of Schedule A, B, C, D and F properties and according to the modified direction with respect to Schedule-E property. 12. The appeal is, thus, allowed in part. Parties are directed to bear their respective cost of litigation throughout. Hearing fee is assessed at contested scale. Final Result : Allowed