JUDGMENT

D.DASH, J. - The appeal under Section 96 of the Code of Civil Procedure (for short, called as “Code”), as at (A), has been filed by the plaintiff challenging the judgment and preliminary decree in Civil Suit No.449 of 2002 passed by the learned Civil Judge, Senior Division, Cuttack.

The defendant nos. 1, 2, 4 and 5, being aggrieved by the said judgment and preliminary decree, have filed the appeal under (B).

The learned 1st additional Civil Judge, Senior Division, Cuttack has passed the judgment on 15.01.2006 and the preliminary decree in consonance with the same has been drawn on 27.04.2016.

Since both the appeals arise from the same judgment and preliminary decree as agreed upon by the learned counsel for the parties, those have been heard together so as to be governed by this common judgment. It may be stated here that respondent no.1 of the appeal under (A) and the appellant no.1 of the appeal under (B) having died during pendency of the appeals, his legal representatives being already on record have been pursuing the appeals althrough.‘

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court.

3. The plaintiff’s suit is for a declaration that Jayadev Behera (defendant No.1) is not the son of late Brahmachari Behera and as such, has no right to succeed to the properties of said Brahmachari and interfere with the rights of plaintiff and others in respect of the suit schedule properties. The alternative prayer is for partition of the suit properties between the plaintiff and defendants in the event of a finding that the defendant No.1 is the son of Late Brahmachari.

Brahmachari was a sepoy under Azad Hind Fouz and on his retirement and home coming, he had taken up the assignment as a gun man and worked as such in UCO Bank. It is stated that with the personal income, he had acquired the suit land by registered sale deed dated 14.01.1953. On purchase and being delivered with the possession of the land, pursuant to the said sale, Brahmachari Behera constructed the house over the same for his own occupation in part as also with an intention to let out rest part to others so as to generate income. It is stated that after construction of the said house, Brahmachari Behera with family stayed in a portion and in so far other portions of the house are concerned, he inducted tenants for different parts and inducted them to occupy as tenants upon agreed terms and conditions including the matter of payment of the rent. It is further stated that the defendant no.1, who is in no way related to Brahmachari is a native of village of Mahammadpur. It is stated that some time in the year 1975, he came and requested Brahmachari to give him a room for his occupation. Accordingly Brahmachari inducted him as a tenant. It is further stated that defendant no.1 got married during his stay there and became the father of four children. Due to the expansion in the family, when the defendant No.1 was reeling with acute problem for their accommodation, as agreed upon, defendant no.1 was permitted by Brahmachari to occupy the first floor of the building as a monthly tenant. On 25.7.1989, Brahmachari died leaving behind his only daughter, who is none other than the plaintiff as his sole heir and she alone claims to have succeeded to all his properties. It is stated that the plaintiff thereafter stepping into the shoes of her father collected the rent from the tenants as her father was doing.

It is alleged that defendant no.1, with some ulterior motive, stopped paying the rent and also asked the other tenants to follow his path. It is further alleged that the plaintiff was assaulted by them and they had made an attempt to drive her out by openly giving a declaration before public that this defendant no.1 is the son of late Brahmachari Behera, which of course did not succeed. It is stated that all the defendants right from defendant n