JUDGMENT

The appellants in this appeal calls in question the judgment and decree passed by the lower appellate Court in S.J.A. No.09/37 of 1993/1989 confirming the judgment and decree passed in O.S. No.62 of 1978. By the said judgments and decrees, the Courts below dismissed the suit of the plaintiffs for declaration that the allotment of share in the homestead plot assigned with no.815 to 818 (four in number) in the final decree passed in O.S. No.40 of 1962 to be not in accordance with the preliminary decree as also based on the report of the Commissioner which suffers from non-consideration of factum of possession of the properties as ordained in the said preliminary decree and as such being unsustainable in the eye of law, are liable to be set aside.

2.The above noted second appeal has been admitted formulating the substantial question of law as raised under ground No.5,7 & 8 which are as under:-

“5) Whether the learned Courts below have failed to consider the sale deed (Ext.8) executed by one Josoda in favour of Sugandha in respect of suit lands and when the specific allegation of Sugandha was that one Bhagabat Mohanty husband of Punti and after him Kartika Jena father of defendan