JUDGMENT :

D.P. CHOUDHURY, J.

1. The captioned appeal is assailed against the confirming finding in the judgment and decree passed by the learned District Judge, Sambalpur in R.F.A. No. 2 of 2010 which was preferred against the judgment and decree passed by the learned Civil Judge (Senior Division), Sambalpur in C.S. No. 130 of 2005.

2. The appellant is the defendant before the trial court, whereas the respondent was the plaintiff before it. The description of the parties would be in this judgment as per their nomenclature before the learned trial court.

Pleadings:

3. The unfurled story of the plaintiff is that the plaintiff and the defendant are two daughters of late Sundar Bhue who is the recorded owner of the schedule-A property vide M.S. plot No. 319 of mouza-Sambalpur on rayati status. After death of Sundar Bhue the plaintiff and defendant succeeded the entire property left by their father and have been possessing the same in their own right, title and interest. On 2.1.2003 the plaintiff requested the defendant for partition of schedule-A property, but the defendant avoided.

4. On enquiry the plaintiff came to know that the defendant without knowledge and information of the plaintiff mutated the entire schedule-A property in her favour showing herself as the only legal heir of late Sundar Bhue in Mutation Case No. 532 of 2001. The plaintiff being aggrieved preferred Mutation Appeal No. 3 of 2003. The learned Sub-Collector, Sambalpur set aside the order of the Tahasildar, Sambalpur and remanded the matter to the learned Tahasildar for fresh disposal. Thereafter the learned Tahasildar in the mutation case after holding fresh enquiry and hearing the parties, jointly recorded the names of the plaintiff and defendant in respect of the schedule-A property. As the schedule-A property was jointly recorded in favour of the plaintiff and defendant the plaintiff requested the defendant to partition the suit property at schedule-A into two halves i.e. schedule-B and schedule-C by allotting schedule B to plaintiff and schedule-C to the defendant. Hence the suit was filed praying for partition of the suit land at schedule-A and to carve out half share of plaintiff therein.

5. Per contra, the defendant filed written statement refuting the allegation made in the plaint. It is averred by defendant that there is no cause of action arose in this case, the plaintiff has no right over the suit land, the suit is barred by law of limitation and nonjoinder of necessary party. It is the further case of the defendant that the defendant is the only daughter of Sundar Bhue who was the original owner of the suit land. The plaintiff is not the daughter of Sundar Bhue. The genealogy as painted by the plaintiff is wrong and false. The mutation record does not create any right, title or interest and the suit has been filed to grab the property of her father. She expressed ignorance about any remand of mutation appeal and joint record of right prepared in respect of the suit land. Since the plaintiff has no right, title and interest over the suit land being a non-entity, she has no share in the suit land. As such, she is not entitled to any share as prayed by the plaintiff. So, the suit should be dismissed.

Discussions:

6. The learned trial court after going through the pleadings of both parties framed the following issues:-

1. Whether the suit is maintainable?

2. Whether there is any cause of action to bring the suit?

3. Whether the suit is bad for non-joinder of necessary party?

4. Whether the suit is undervalued?

5. Whether the order of learned Tahasildar, Sambalpur in Mutation Case No. 532 of 2001 is in nullity for nonservice of notice on the defendant and has got no binding effect on defendant?

6. Whether the plaintiff is entitled for half share out of schedule 'A' property of the plaint and also entitled to get allotment of 'B' schedule property with respect to her half share out of that 'A' schedule property?

7. Whether the plaintiff is entitled for any more relie