D.M. Patnaik, J.
1. The second appeal is against the confirming judgments of the Courts below dismissing the plaintiffs suit for partition where in she claims half share in the property situate in village Surubali.
2. Plaintiff's case is that her father Nutunu Mohanla had two wives, the elder one being Lata having predecesed Nutun and the second wile Nirasa, mother of the plaintiff. It is claimed that Nirasa died sometime during 1958 leaving behind the plaintiff as the sole heir. Lata had two daughters namely Domani and Nali. Defendant No. 1 is the daughter of Domani and defendants 3, 4 and 5 are sons of Nali. It is the plaintiff's case that she was jointly enjoying the property along with Domuni and Nali and after death of Nali the parties also lived jointly and possessed the land but sometime thereafter they deprived the plaintiff from enjoyment of the properly without giving any share to her even though she demanded for the same. Therefore, she filed the suit for partition.
3. The defendants filed a written statement denying the material facts pleaded in the plaint.They pleaded that Nutunu Mohanta, their grand-father had lands in Surbali, Sarabhadi which were partitioned during Nutun Mohant's time between his two wives each one separately possessing the lands. In that partition the suit land in village Surubadi fell to the share of Lata, the grand-mother of the present defendants and the other lands at Suruhadi and Ghodaghaguri fell to the share of Nirasa. Nirasa possessed the land of Surabadi and Ghodaghaguri along with her son Rengulu and after death of Nirasa Renugut hold his lands in that village along with the plaintiff. Thus they pleaded previous partition and claimed dismissal of suit on that score.
4. Though the lower court framed as many as nine issues, only two important issues were that whether there was any previous partition by metes and bounds and whether the defendants prescribed title by adverse possession against the plaintiff by way of ouster.
The lower Court found both the issues against the plaintiff which was confirmed by the lower appellate Court.
5. Mr. R. K. Panda on behalf of Mr. A. K. Mishra, learned Counsel for the plaintiff-appellant did not press the concurrent finding of the Courts below on the question of previous partition but, however Mr. Panda has strenuously urged that the Courts below committed error in not only wrongly appreciated the proposition of law with regard to acquisition of title by adverse possession by way of ouster but also applying the said principles to the facts and circumstances of the present case.
Mr. Y. S. N. Murthy, learned Senior Counsel on behalf of the respondents on the other hand, supported the judgments of the courts below on both counts. On the point of substantial question of law, Mr, Murty refers to three decisions of the Supreme Court in the cases of Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and ., AIR 1962 SC 1314; Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 : (AIR 1997 SC 2517); and Panchugopal Barua v. Umesh Chandra Goswami, AIR 1997 SC 1041 and submits that this Court sitting in second appeal has limited scope to judge only the substantial question of law formulated at the time of admission of the appeal and this, according to Mr. Murty shouldbe confined only to the examination as to whether there has been error in reading the evidence of P.W.4 and if such an error has at all affected the decision in the case.
6. So far as the contention of Mr. Murty is concerned, having gone through the decisions referred by him I have no quarrel over the settled position of law but when the finding of the Courts below are based on a wrong reasoning which has rendered the judgment vulnerable, this Court in second appeal can interfere with the judgments.
So far as the substantial question of law is concerned, unfortunately this Court did not formulate the question but recorded that it should be as under ground No. 1, But with great respect, ground No. 1 does not correctly formlate the substantial questions of law, for which I have allowed the learned Counsel to raise other points also.
7. In the present case admittedly parties are co-sharers and each party is entitled to half share in the property. There is no finding that there has been previous partition by metes and bounds. In that case normally the plaintiff's suit for partition should have been decreed, but the same has been dismissed holding that the defendants have prescribed title by adverse possession and therefore no relief for partition could be granted. I am not satisfied with the reasoning given by the lower appellate Court. The lower appellate Court being a Court of fact should have analysed the evidence on record in the light of the issues whether there was partition by metes and bounds and that the defendants have ousted the plaintiff an admitted co-sharer and then only should have held that there has been an ouster. The reasons which weighed in the mind of the lower appellate Court is that the disposition of the properties having been made independently by the parties, and that the defendants having been separately recorded in respect of the suit land and that since they have been paying rent for the lands, they have been able to prove outster. These reasonings should not have weighed in the mind of the Court in coming to the conclusion that there has been an ouster. Rather they could at best show that there has been a partition by metes and bounds, but certainly these elements should not have been judged for the purpose of consideration that one of the co-sharers has acquired title by adverse possession by way of ouster. This having notbeen done, the lower appellate Court's judgment is liable to be set aside.
8. In the result, the second appeal is allowed. The lower appellate Court's judgment is set aside. The case is remitted back for fresh disposal in the light of the observation made in the judgment. The appeal should be disposed of within a period of three months from the date of receipt of the L.C.R. No further notice need be issued to the parties since they are represented by their respective counsel. Let the parties be informed to appear before the lower appellate Court on 22-1-1997 to receive further direction.