The main legal point established in the judgment is the relevance of marital status as a material proposition in a civil suit, and the jurisdiction of the Civil Court to decide issues inextricably mixed up with each other.

JUDGMENT :

A.K.RATH, J.

1. This petition challenges the order dated 2.8.2016 passed by the learned Additional Civil Judge (Sr.Division), Puri in C.S.No.04/311 of 2006-2004, whereby and whereunder, learned trial court has rejected the application of the plaintiff-petitioner to expunge a portion of the affidavit of evidence filed by defendant-opposite party no.1 and strike out issue no.4.

2. The plaintiff-petitioner instituted the suit for declaration that she is the owner in possession of the properties mentioned in Schedule A, B, E & F and entitled to the moveable properties mentioned in Schedule C & D, the legal heirs certificate as well as the order of mutation are void and not bind on her, recovery of possession, in the event she is dispossessed from the suit property during pendency of the suit and consequential reliefs. The case of the plaintiff is that she is the daughter of Madan Mohan Das and Manorama Devi. Her father and mother died on 2.1.1994 and 31.7.2000 respectively. Her brother Srikumar Das was a bachelor. He was a paraplegia patient. He was working as Clerk in the Fishery Department. He died on 8.6.1998 while in service. His obsequies were performed by her son Bibaswat Gautam. She is staying in her parental house to look after the old and ailing parents. Her brother had executed a will in favour of her son Bibaswat Gautam on 29.4.1998. Her son filed T.S.No.291 of 2000 in the Court of the learned Civil Judge, Senior Division, Puri for probate of the will. Defendant no.1 lodged a caveat and stated that she was the widow of Srikumar Das. But then, the Court did not decide the said issue. The case was dismissed on 7.5.2004. After death of her parents, the properties devolved on her. She is entitled to get back the movable properties mentioned in Schedule C & D. She is the absolute owner of the immovable properties mentioned in Schedule A, B, E & F. Defendant no.1 had no semblance of right, title and interest over the same. Defendant no.1 had not married to her brother. During the life time of her brother, defendant no.1 filed O.S.No.419 of 1994 against him for a decree of divorce. Her brother entered contest and filed written statement denying the marital status. An issue "Is the petitioner the legally married wife of opposite party?" was framed. During pendency of the suit, the defendant died. A petition was filed to implead the legal representatives of the deceased on the strength of the will. No objection was filed. While matter stood thus, the plaintiff filed a petition for abetment of the suit. Accordingly, the suit was abated on 16.11.1998. Before abatement of the suit, defendant no.1 managed to obtain the legal heirs certificate by playing fraud on defendant no.3. Defendant no.1 also filed Mutation Case No.3045 of 1998 on the basis of the legal heir certificate. Defendant no.4 in connivance with defendant no.1 allowed the mutation case. The same are not binding on her.

3. Defendant no.1 entered contest and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of defendant no.1 is that she was the wife of Srikumar Das.

4. Learned trial court framed issues. Issue no.4 is "whether the defendant no.1 is competent to claim in this case styling as wife of late Srikumar Das, deceased brother of the plaintiff in view of the decision pronounced on 16.11.1998 in O.S.No.419 of 1994?" The parties filed affidavit of evidence. The plaintiff filed an application to expunge a portion of the affidavit of defendant no.1 with regard to marital status and to strike out issue no.4 and recast the issue. The same having been rejected, she filed C.M.P.No.850 of 2016. She withdrew the petition to file a better petition. Thereafter, she filed a petition seeking the same relief. Defendant no.1 filed objection.

5. Learned trial court assigned the following reasons and rejected the petition:-

"In the W.S. the defendant No.1 at para-14 denied the pleading of the plaintiff and at par-15 has categori