JUDGMENT

The unsuccessful defendant has filed this appeal challenging the judgment and decree passed by learned Civil Judge, (Sr. Division), Jagatsinghpur in C.S. No.189 of 2005.

The respondent as the plaintiff had filed the suit for partition of the properties described in the schedule of the plaint seeking allotment of half share over the same in her favour and the rest half in favour of appellant; arraigned as defendant.

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 plaintiff’s case is that the parties are Hindus and governed by Mitakshara School of Hindu Law. One Bulei Nayak and Nidhi Nayak are two brothers. Late Gunduchi Nayak is the son of Bulei whereas DhrubaNayak is the son of Nidhi Nayak. The plaintiff claims to be the daughter of Dhruba Nayak and his wife Maguni Dei. It is submitted that the defendant, Abhaya Nayak is the son of Guinduchi. So, one branch is said to be represented by the defendant, whereas the other branch is represented by the plaintiff. It is further stated that the plaintiff succeeded to the interest of her late father Dhruba Nayak, whereas the defendant succeeded to the interest of his late father Gunduchi Nayak. The land described in the Schedule-A of the plaint stands recorded jointly in the name of Dhruba and Abhaya as per the record of right published by the Consolidation Authority. Asserting the rights of the parties they filed the petition before the Consolidation Authority which was numbered as Objection Case No.289/292 of 1994 for partition of the suit property. That stood dismissed since the parties failed to take up follow up action. The defendant is said to have sold land measuring Ac.1.00 decs. out of Ac.7.42 decs. from the land under consolidation plot No.766 and Chaka No.227 assigned with Khata No.18 at mouza Santarapur. One Ramesh Chandra Samantaray is said to have purchased a portion of land therefrom under the registered the sale-deed dated 04.12.2000. So, it is stated that said land is to be adjusted towards the share of the defendant. The plaintiff stated that since the defendant refused for partition of the property despite repeated demand to that effect, she has been compelled to file the suit.

4. The defendant entering appearance contested the suit by filing written statement. He objected to the maintainability of the suit on the ground of non-joinder of necessary parties such as Usha Nayak, Shasi Nayak, Nisha Nayak and Basanti Nayak, the four daughters of Gunduchi Nayak who is stated to have died after the year 1956. It has been further averred that all the properties of the joint family have not been brought to the hotchpot.

The genealogy as projected by the plaintiff is stoutly denied. It is stated that Bulei died leaving behind his four daughters, Usha, Shasi, Nisha and Basanti. Nidhi died leaving behind his son Dhruba. Dhruba is said to have died leaving his daughter Khetramani and Abhaya, who is none other than the defendant,. Thus, the defendant asserts himself to be the son of Dhruba and denied to be the son of Gunduchi as stated by the plaintiff. He has also denied to have filed any Objection Case before the Consolidation Authority. It is thus stated that the plaintiff is entitled to get 1/4th share from the property in case of partition.

5. The trial Court on the above rival pleadings, has framed following issues :-

(i) Is the suit maintainable ?

(ii) Has the plaintiff any cause of action to file the suit ?

(iii) Is the suit bad for defective of parties ?

(iv) Is the suit barred by law of limitation ?

(v) Whether all the family properties of the parties brought to the hotch-pot ?

(vi) Whether the genealogy given in the plaint is correct ?

(vii) Whether the plaintiff is entitled to get the relief sought for ?

(viii) Whether Abhaya Prasad Nayak is the son of Gunduchi Nayak ?

(ix) To what other relief the plaintiff is entitled.

6. The trial C