IMPORTANT POINT
For a property to be considered an undivided dwelling house under Section 44 of the T.P. Act, 1882, it must be physically connected and necessary for the enjoyment of the dwelling, which was not established in this case.

JUDGMENT

A.C. Behera, J.

This 2nd appeal has been preferred against the confirming judgment.

2. The appellants and respondents of this 2nd appeal were the plaintiffs and the defendants in the suit vide T.S. No.192 of 2002 and they were the appellants and respondents respectively in the 1st appeal vide T.A. No.73 of 2007.

The suit of the plaintiffs(appellants) vide T.S. No.192 of 2002 was a suit for permanent injunction against the defendants (respondents) under Section 44 of the T.P. Act, 1882.

As per the averments made by the plaintiffs in the plaint, the genealogy of their family is as follows:-

3. According to the aforesaid genealogy provided by the plaintiffs, Burundhu Pradhan was their common ancestor. Burundhu Pradhan died leaving behind his two sons, i.e., Kanduri and Mani. Kanduri died leaving behind his only son Saunti(defendant no.3). The 2nd son of Burundhu, i.e., Mani died leaving behind his two sons, i.e., Purusottam and Sridhar. Purusottam died leaving behind his only son Gandharba (plaintiff no.1). Sridhar died leaving behind his widow wife Tara (plaintiff no.2) and one daughter, namely, Sulochana(plaintiff no.3).

4. As per the averments made by the plaintiffs in their plaint, the suit properties described in Schedule-B of the plaint, i.e., Plot No.1576 Ac.0.26 decimals under Khata No.179 in Mouza Rahana under Binjharpur Police Station (Now Bari) in Jajpur District are the undivided homestead qua dwelling house of the plaintiffs and defendant no.3 and the major settlement record of right of the same stands jointly in favour of the plaintiffs and defendant no.3. The plaintiffs and defendant no.3 have their ancestral dwelling house over Plot No.1563. The suit properties covered under Plot No.1576 described in Scheduled-B is adjacent to their dwelling house situated on Plot No.1563. The plaintiffs have been using the suit properties as their kitchen garden. The plaintiff no.1 had a fuel-shed and cowshed over the suit properties, which was broken in 1999 super cyclone. The plaintiffs have not abandoned their idea of raising a house over the "B" Schedule suit properties. The plaintiffs have also been using the suit properties as their threashing floor. The suit properties described in Schedule "B" vide M.S. Plot No.1576 is within one enclosure and the same is a part and parcel of their dwelling house situated on Plot No.1563. They (plaintiffs) cannot spare any part of the suit properties, because the suit properties is their undivided homestead area and the same has not been partitioned through metes and bounds between them and their co-sharers. They (plaintiffs) have been cremating their ancestors on the suit properties and as such, the graveyard of their ancestors exist over a part of the suit properties described in Schedule-"B" of the plaint. They (plaintiffs) also cannot spare any part of the graveyard of their ancestors and also cannot allow to disturb the sanctity of their graveyard situated on the suit properties, i.e., over Plot No.1576. The suit properties are very much essential for their beneficial enjoyment as their undivided dwelling house. The defendant nos.1 and 2 are the strangers to their family, i.e., to the family of the plaintiffs and defendant no.3. The defendant nos.1 and 2 have no right of joint possession of "B" schedule suit properties with the plaintiffs. Surprisingly, on dated 12.08.2002, the defendant nos.1 and 2 attempted to enter upon the "B" schedule suit properties forcibly and tried to interfere with the smooth possession of the plaintiffs over the suit properties and also tried to make construction thereon, but, they (defendant nos.1 and 2) could not succeed in their such attempt by the protests of the plaintiffs. When the plaintiffs protested against the above illegal activities of the defendant nos.1 and 2, then, they (defendant nos.1 and 2) disclosed that, they have purchased 8 anna share of defendant no.3 in suit Plot No.1576. As, the defendant nos.1 and 2 are the strangers, they hav