The omission of section 23 of the Hindu Succession Act, 1956, had an impact on the pending suit, allowing the plaintiff to seek partition of the dwelling house without fulfilling the conditions previously required by the omitted provision.

JUDGMENT :

D.DASH, J.

This appeal has been filed against the judgment and decree passed by the learned District Judge, Dhenkanal in Title Appeal No. 27 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Dhenkanal in Title Suit No. 77 of 1995. The appellant as the plaintiff had filed the suit for partition of the land described in Schedule -A (comprising of lot 1 and lot 2) as also the Schedule -B of the plaint. The trial court decreed the suit preliminarily in part for partition allotting 1/3rd share to the plaintiff over Schedule -A lot - 1 property in favour of the plaintiff and 1/3rd share each to respondent no. 2 and 3 (defendant no. 1 and 2), while declining the partition the properties described in lot - 2 of Schedule -A and Schedule -B holding the plaintiffs-appellant to be having no right to claim partition of land under lot 2 of Schedule -A and that the Schedule -B land as not liable to be partitioned amongst the parties. The unsuccessful plaintiff (appellant) being aggrieved by such refusal of the relief as prayed for in respect of the Schedule -A, lot -2 land as also Schedule –B having carried an appeal under section 96 of the Code of Civil Procedure has failed to get the trial court’s decree enlarged to any extent. So she has now approached this Court with the second appeal under section 100 of the Code of Civil Procedure.

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 case of the plaintiff is that the properties described in Schedule -A under two lots i.e., lot - 1 which are the landed properties of village Kankadahada and lot - 2 which is homestead land in the town of Dhenkanal belong to her father and the land described under schedule B as the land belonging to the State adjoining the homestead land described in lot 2 which has remained in possession since the time of her father Kampal Parida. Accordingly, it is stated that Kampal had acquired right, title and interest over said schedule B land by adverse possession by virtue of his open, peaceful and continuous possession for much more than the period prescribed. She filed the suit claiming 1/3rd share over the above properties.

It is stated that defendant no. 1 had earlier filed a suit for partition of the properties in three equal halves amongst himself, his brother-defendant no.2 and the sister i.e., the present plaintiff. The suit having been dismissed, no further steps are said to have been taken for its restoration. The plaintiff claims to have made a request for partition of the above properties and allotment of land as she is entitled in law, but as the defendants did not listen to the same, the present suit has been filed.

4. Defendant no. 2 has only come forward to the contest the suit. Challenging the maintainability of the suit, he states that since all the properties belonging to their father have not been brought to the hotchpot, the suit is not maintainable as it is one for partition. It is stated that in course of enjoyment of the joint family properties situated in other villages which formed the joint family nucleus and during such management, these properties described in lot-1 of the Schedule –A was purchased in the name of their father. So, it is asserted to be the ancestral property. As regards the property described in lot – 2 of the plaint is stated to have been purchased by the Kampal out of his own income. It is also stated that Schedule –B land has been in encroachment during the lifetime of Kampal and it has been kept under fencing having been amalgamated with the recorded land. It is further informed by the defendant no. 2 as regards pendency of the encroachment case and that land has not yet been settled either in the name of Kampal or anybody else claiming through Kampal. This defendants no. 2 now claims to be in possession of the said land. The land is thus sa