JUDGMENT :

A.K.Rath, J.

Defendants are the appellants against a reversing judgment.

2. Plaintiffs-respondents 1 and 2 instituted the suit for partition. Case of the plaintiffs is that Amar Podh was the common ancestor of the parties. He had two wives. Mangalsai and Dinabandhu are the sons of Amar through first wife. Bhanka, Chhuta and Ude are the sons of Amar through second wife. Defendants are the heirs of Mangalsai, Dinabandhu and Bhanka. Other defendants are transferees of a portion of the suit lands from the heirs of Mangalsai, Dinabandhu and Bhanka. The suit property is the ancestral joint family properties of the parties. Due to increase the number of the family members, plaintiffs requested the defendants for partition of the suit properties, but the defendants maintained a stony like silence.

3. Defendant no.7 entered contest and filed a written statement denying the assertions made in the plaint. He disputed the genealogy. According to him, the plaintiffs are not related to the defendants. The suit land was partitioned between the sons of Mangalsai, Dinabandhu and Bhanka forty years back. Mangalsai purchased the lands from Dhansingh Majhi and Jamkhunta Bhag. He reclaimed Anabadi lands and amalgamated the same with his own lands. The said lands were recorded in the name of the sons of Mangalsai, Dinabandhu and Bhanka in the ROR published in the year 1936. Plaintiffs’ name does not find place in the ROR. Plaintiffs managed to record the lands in the Hal ROR. Most of the suit lands had been sold by the defendants from their share. The purchasers are in possession of the lands.

4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, both oral and documentary. Learned trial court dismissed the suit holding, inter alia, that the plaintiffs are not related to Amar Podh. The suit property was the self-acquired property of Mangalsai, Dinabandhu and Bhanka. The plaintiffs have no semblance of right, title and interest over the same. They are not the co-parceners. Feeling aggrieved, the plaintiffs filed Title Appeal No.25/4 of 1982-87 before the learned Addl. District Judge, Titilagarh. Learned appellate court came to hold that the plaintiffs are the sons of Amar Podh. Held so, it allowed the appeal.

5. The appeal was admitted on the following substantial question of law.

“Whether relationship of the plaintiff with Amar has been proved in compliance with the requirement of Section 50 of the Evidence Act.”

6. Heard Mr. Lalit Kumar Maharana on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the respondents 1 and 2.

7. Mr. Maharana, learned counsel for the appellants submitted that the plaintiffs are not the sons of Amar Podh. The evidence led by P.Ws.2 and 3 does not satisfy the requirements of Sec. 50 of the Indian Evidence Act. P.W.3 in his evidence merely stated that his father had four brothers. Mangalsai and Dinabandhu are sons of Amar Podh through first wife. Bhanka, Chhuta and Ude are sons through second wife. Placing reliance on Sec. 50 of the Indian Evidence Act, he submitted that if a person who, as a member of the family or otherwise, has special means of knowledge on the particular subject of relationship, then what is relevant in his opinion expressed by conduct. Opinion means something more than a mere gossip or hearsay; it means judgment and belief i.e. a belief or a conviction resulting from what one thinks on a particular question. The belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or the opinion. He further submitted that though P.Ws.2 and 3 are family members, but they have nowhere proved their statements through conduct. Their statement has not been explained anywhere. He further submitted that the offered item of evidence is the conduct. The opinion expressed by such conduct is admiss