IN THE HIGH COURT OF ORISSA AT CUTTACK

S.A. No.377 of 1997

(In the matter of an appeal under Section 100 of the Code of Civil

Procedure, 1908)

Sujana Rout …. Appellant

-versus-

Bishnu Behera(dead) and others …. Respondents

Appeared in this case:-

For Appellant : Mr. D.K. Mohanty, Advocate For Respondents : Mr. N.P. Patra, Advocate

(For the Respondent No.1)

Mr. N.K. Mohanty, Advocate

(For the Respondent Nos.2(a) to

2(g)

CORAM:

JUSTICE A.C. BEHERA

JUDGMENT

Date of hearing : 01.12.2025 / date of judgment :23.12.2025

A.C. Behera, J. This 2^nd appeal has been preferred against the confirming

judgment.

2. The appellant in this 2^nd appeal was the defendant no.1 before the trial court in the suit vide T.S. No.25 of 1989 and appellant before the 1^st appellate court in the 1^st appeal vide T.A. No.30 of 1993.

The respondent no.1 in this 2^nd appeal was the sole plaintiff before the learned trial court in the suit vide T.S. No.25 of 1989 and respondent no.1 before the learned 1^st appeal court in the 1^st appeal vide T.A. No.30 of 1993.

The respondent nos.2 and 3 in this 2^nd appeal were the defendant nos.2 and 3 before the trial court in the suit vide T.S. No.25 of 1989 and respondent nos.2 and 3 before the learned 1^st appeal in the 1^st appeal vide T.A. No.30 of 1993.

3. The suit of the plaintiff(respondent no.1 in this 2^nd appeal) vide T.S. No.25 of 1989 before the trial court against the defendant no.1(appellant no.1 in this 2^nd appeal) was a suit for permanent injunction in alternative eviction.

4. According to the plaintiff, he(plaintiff) and defendant nos.2 and 3 are brothers and they are three sons of Lakshman Behera.

5. The suit properties described in Schedule of the plaint is the joint and undivided properties of the plaintiff and defendant nos.2 and 3. The said suit properties have not been partitioned/divided between them through any metes and bounds partition. Till yet, the suit properties had/have been continuing as their joint and undivided properties. The suit properties have been recorded jointly in the name of the plaintiff and defendant nos.2 and 3 in the last Hal Settlement under Khata No.344, Plot No.882, as their joint and undivided dwelling house. The plaintiff and defendant nos.2 and 3 belong to Scheduled Caste community, whereas, the defendant no.1 being a non-scheduled caste person as well as a stranger to their family. The said defendant no.1 purchased the suit properties illegally from the defendant no.2 through sale deed dated 04.04.1988 without any permission under Section 22 of the OLR Act, 1960 from the competent authority, although she(defendant no.1) had/has got no right of joint possession in the undivided dwelling house with the plaintiff and defendant nos.2 and 3. After execution of such sale deed dated 04.04.1988, when the plaintiff came to know about the same, he(plaintiff) requested defendant no.1 not to enter into their undivided dwelling house and not to make any construction on any portion of the same, to which, the defendant no.1 did not agree, but, started construction forcefully and illegally in a portion of the suit properties, for which, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.25 of 1989 against the defendant no.1 arraying his two brothers, i.e., defendant nos.2 and 3 as pro-forma defendants praying for restraining the defendant no.1 permanently from coming upon to their joint and undivided dwelling house, i.e., to the suit properties and to evict the defendant no.1 from the suit properties, if it is found that, she(defendant no.1) is in possession over the same along with other reliefs, to which, he(plaintiff) is entitled for.

The defendant nos.2 and 3, i.e., two brothers of the plaintiff were set ex parte.

6. The defendant no.1 contested the suit of the plaintiff vide T.S. No.25 of 1989 by filing her written statement taking her stands inter alia therein that, there was partition of the suit plots between the plaintiff and defendant nos.2 and 3 prior to her pu