ORISSA HIGH COURT : CUTTACK S.A. No.296 of 1998 In the matter of an appeal under Section 100 C.P.C, 1908.

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Smt. Mahunadi @ Mahanandi @ Mahanadi Devi @ Upadhyaya (dead) & Others … Appellants.

-VERSUS-

Smt. Satyabhama Panda & Others … Respondents Counsel appeared for the parties:

For the Appellants : Mr. S. Mantry, Advocate.

For the Respondents : Mr. N. Panda-1, Advocate.

P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 16.01.2025 :: Date of Judgment : 17.01.2025

JUDGMENT

ANANDA CHANDRA BEHERA, J.

1. This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellant in this 2^nd Appeal i.e. Mahanadi Devi was the defendant No.1 before the Trial Court in the suit vide O.S. No.15 of 1991-I and sole appellant before the 1st Appellate Court in the First Appeal vide T.A. No.14 of 1993.

The respondents in this 2nd Appeal were the plaintiffs and defendant Nos.2 to 8 before the Trial Court in the suit vide O.S. No.15 of 1991-I and respondents before the First Appellate Court in the 1^st Appeal vide T.A. No.14 of 1993.

3. The suit of the plaintiffs (respondent Nos.1 to 4 in this 2^nd Appeal) against the defendants (appellant and respondent No.5 to 11 in this 2nd Appeal) vide O.S. No.15 of 1991-I was a suit for partition and for re-purchasing homestead properties under Section 4 of the Partition Act, 1890.

4. According to the plaintiffs, they (plaintiffs) and defendants are Hindus and they are guided and governed by Mitakshara School of Hindu Law.

In order to have an instant reference, the genealogy given by the plaintiffs in their plaint is depicted hereunder:

Genealogy Kushei Panda Bhagaban Bhagabat Sadananda Gadadhara Harihar Mandodari Jadi Krushna Suma Bhaskar (D.2)

(Daughter)

Khetramohan Krupasindhu Dinabandhu Sadhabani Madhab (P.2) (D5)

Satyabhama Rukmani Monorama Karunakar Mayadhar Ratnakar (P.1) (D.3) (D.4) (P.3) (P.4) (D.8) As per the aforesaid genealogy given by the plaintiffs in their plaint, Kushei Panda was their common ancestor. Kushei Panda died leaving behind his 5 sons i.e. Bhagaban, Bhagabat, Sadananda, Gadadhar & Harihar. The 3rd and 4th son of Kushei Panda i.e. Sadananda and Gadadhar died issueless. Accordingly, their branches extinct.

Bhagaban Panda died leaving behind his 3 sons i.e.

Khetramohan, Krupasindhu & Dinabandhu. The 2^nd Son of Bhagaban i.e. Krupasindhu died issueless.

Khetramohan died leaving behind his wife Sadhabani (plaintiff No.2) and 6 children i.e. plaintiff No.1, defendant No.3, defendant No.4, plaintiff No.3, plaintiff No.4 and defendant No.8.

The 2^nd son of Kushei Panda i.e. Bhagabat died leaving behind his wife Mandadori and one son and one daughter i.e.

Krushna & Suma. Krushna died issueless.

The 5th son of Kushei Panda i.e. Harihar died leaving behind his wife Jadi and one son i.e. Bhaskar (defendant No.2).

All the suit properties described in the Schedule of the plaint are the joint and undivided properties of the plaintiff, defendant Nos.1 to 5 and defendant No.8 and the said suit properties have not been divided between them physically through any metes and bounds partition.

Previously, one suit for partition was filed by the predecessor of the plaintiffs i.e. Khetramohan Panda along with defendant No.2 vide O.S. No.7/292/61 of 1950/1948-I in respect of the suit properties along with their other joint properties and that suit was decreed preliminarily for partition in the Court of learned Addl. Sub-ordinate Judge, Balasore. In that preliminary decree, the defendant No.2 (Bhaskar Panda, who was the plaintiff No.2 in O.S. No.7/292/61 of 1950/1948-I) was entitled to get 1/8th share and others were entitled to get their respective shares as per such preliminary decree passed in O.S. No.7/292/61 of 1950/1948-I. After that preliminary decree, one of the parties of that suit i.e. Suma (daughter of Bhagabat) approached for final decree and accordingly, in the final decree of O.S. No.7/292/61 of 1950/1948-I, the share of that Suma was carved out and her share was separated making