JUDGMENT

B.K. PATEL, J. — The unsuccessful plaintiffs are in appeal against judgment and decree passed by learned Subordinate Judge (now Civil Judge, Senior Division), Sambalpur in T.S. No.31 of 1978, a suit for partition.

2.It is not disputed that the suit land originally belonged to late Sriram Patel, the common ancestor of parties. Admitted genealogy of parties to the suit is as follows :

Sriram Patel

NiranjanSudarshan Abhiram

GajendraNetranandaPurna

D.1 D.2 D.3

Shyamsudar Biseswar Mst. Sebati Mst. Surasti Kuber

P.1= P.4 P.5 P.6

Wife-Mst. Mali

P.2

Bhubaneswar

P.3

Mst. Malabati Nrupalal Sobharam Gandhi Mst. Khira Mst.Kamala

P.7 P.8 P.9 Pr.D.4 P.10 P.11

During pendency of the suit plaintiff No.1 died and was substituted by his daughter who is presently the appellant No.1.

3.Plaintiffs filed the suit on the allegations that plaintiffs’ predecessors of plaintiffs and proforma defendant No.4, namely, late Sudarshan and Abhiram were idiotic, simpletons, illiterate and of incomplete development of mind. The predecessor of the defendants, namely, late Niranjan playing fraud, executed a document on 18.6.1924 (Ext.9), purpoted to be a deed of partition, allotting major share for himself and such partition was allegedly acknowledged in another document executed on 13.10.1929 (Ext.E) wherein further partition of some other properties was also stated to have been effected. Plaintiffs further alleged that, due to such fraud, partition, if any, is inequitable and disproportionate on the face of the document. It was pleaded that late Niranjan kept the fact of inequitable partition made in Ext.9 and Ext.E concealed and cleverly allowed Sudarshan and Abhiram to possesses larger parcels of lands, than what was mentioned in Ext.9. Plaintiffs could know about the fraud when defendant No.1, Gajendra produced Ext.9 and Ext.E before the authorities in order to get most of the lands recorded in the name of defendants during current Major Settlement operation. Defendant No.1’s attempt failed due to objection raised by plaintiffs. Defendants filed written statement denying plaint’s allegation that plaintiff’s predecessors, namely, late Sudarshan and late Abhiram were not the legitimate children of late Sriram Patel. It was averred that Ext.9 and Ext.E were duly executed effecting complete partition and the parties are in possession accordingly. Defendants also advanced the plea that suit is barred by limitation under Orissa Land Reforms Act.

4.Learned trial Court framed the following issues for adjudication.

“1.Is the partition of 1924 evidenced by document on 18.6.1924 and 3.11.1929 is inequitable ?

2.Are late Sudarsan and Abhiram legitimate sons of Sriram Patel ?

3.Have Niranjan or the defendants played fraud on the plaintiffs or their fathers ?

4.Is the suit barred by limitation ?

5.Is the suit as framed maintainable ?

6.Has the Court jurisdiction to entertain the suit for partition ?

7.To what relief ?”

5.In order to substantiate their respective stands, plaintiffs examined two witnesses including plaintiff No.3 as P.W.1 and relied upon documents marked Exts.1 to 9 whereas defendants examined four witnesses including defendant No.1 as D.W.1 and relied upon documents marked Exts. A to G.

6.Learned trial Court, on appraisal of evidence on record and on consideration of rival contentions, held that though Ext.9 is not admissible for want of registration, as the fact of partition is acknowledged in Ext.E, there was complete partition among the predecessors of the parties. Learned trial Court also held that the predecessors of plaintiffs were not illegitimate children. Learned trial Court also disbelieved the allegation of fraud and the assertion that plaintiffs’ predecessors were idiotic, simpletons, illiterate, and of incomplete development of mind. However, it was held by the learned trial Court that though the Court has jurisdiction to decide the suit, the same is barred by limitation.

7.Learned counsel for the appe