The rejection of additional evidence sought to be adduced in the First Appellate Court was justified, as it did not meet the criteria under Order 41 Rule 27 of the Civil Procedure Code, and it would have no impact on the controversial issue of the relationship of the parties.

JUDGMENT

D. Dash, J. - The Appellants, by filing this Second Appeal, under Section 100 of the Civil Procedure Code (for short, the Code) have assailed the judgment and decree dated 18.08.2005 and 02.09.2005 passed by the learned 2nd Additional District Judge, Cuttack in Title Appeal No.109 of 1993.

By the said judgment and decree, the Appeal filed by the present Appellants under section 96 of the Code has been dismissed. Thereby, the judgment and preliminary decree dated 10.09.1993 and 1.10.1993 respectively passed by the learned Civil Judge, 1st Court, Cuttack (as it was then) in Title Suit No.390 of 1983 have been confirmed.

2. These Appellants, being the Plaintiff and Appellants before the First Appellate Court are thus now challenging the judgment and preliminary decrees as they are not satisfied with the allotment of the shares in the properties of the Parties which not in consonance with their claim and prayer, as advanced.

3. 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 Suit.

4. The Plaintiffs case, in short, is that they are successors-in- interest of one Govinda Nayak, son of Rahas Nayak whereas the Defendants are the successors-in-interest of Hari Nayak and Bhima Nayak, who are two brothers being sons of Fakira Nayak.

It is the case of the Plaintiff that they and the Defendants are in agnatic relationship and the suit properties described in Schedule-A, B, C and C-I of the plaint are their joint properties and, therefore, in the settlement, those have been jointly recorded in the name of predecessors-in-interest of the Plaintiffs and Defendants with further inclusion of the name of one Gundei Bewa. It is stated that on 30.07.1929, Gundei, the widow of Arjuna Nayak, one of the three sons of Fakira had sold her 1/3rd share over Schedule-A, B and C property in favour of Hari and Bhima, the other two sons of Fakira and Govinda, sons of Rahas Nayak by registered sale deed. It is also their case that Govinda had 8 anas of share over the said land when Hari and Bhima had acquired the rest 8 anas share in the Schedule-A, land measuring Ac.1.20 decimals. The Plaintiffs predecessors-in-interest had Ac.0.31 decimals as of their share and Gundei Bewa sold her share of rest Ac.0.89 decimals by sale deed. The Plaintiffs thus became the owner of Ac.0.75 decimals and 5 square-link. It is stated that by virtue of that registered sale deed executed by Gundei Bewa, their predecessors-in- interest, i.e, Govinda had half interest in Schedule-B & C properties and accordingly, they are entitled to that Ac.0.28 decimals in Schedule- B property and half share over Schedule-C property to the extent of Ac.1.61 decimals. The predecessors-in-interest of Defendants, however, were looking after the joint properties and sharing the issufructus with the predecessors-in-interest of the Plaintiffs. In the settlement operation, they got entire C-I schedule property recorded in their name exclusively even though their predecessors-in-interest, namely, Govinda had half share, who was ignorant.

According to them, the suit property that never been partitioned by midst and bounds amongst the co-sharer and the parties are in possession of separate parcels of properties for convenient but not in accordance with their share. The dissension having arisen amongst the parties, the Plaintiffs claim for partition and that being not paid any heed by the Defendants, the Suit has been filed. One important development taken place after institution of the Suit need to be mentioned at this stage is that during Suit, consolidation operation having commenced in respect of the lands under one mouza, i.e, Bidyadharpur, Objection Case No.2170/134 of 1985 came to be filed by the Plaintiffs for recording of their half share over Schedule-A property. Be that as it may, the area of Cuttack Municipality being extended covering the land in question, though he consolidati