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IN THE HIGH COURT OF ORISSA AT CUTTACK

SA No.168 of 1988

In the matter of an appeal under section 100 of the Code of Civil

Procedure assailing the judgment and decree dated 30.03.1988 and

15.04.1988 respectively passed by the learned 2^nd Additional District

Judge, Ganjam, Berhampur in Title Appeal No.29/87 (T.A. No.60/86

GDC) setting aside the judgment and decree dated 07.07.1986 and

15.07.1986 respectively passed by the learned Sub-Jude, Aska in Title

Suit No.81 of 1983.

----

Sagi Sanyasi Raju

….

Appellant

-versus-

Rabinarayan Sahoo & Others

….

Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode):

For Appellant

-

Mr.N.C. Pati, Advocate

For Respondents -

Mr.P. Mohanty, Advocate

CORAM:

MR. JUSTICE D.DASH

Date of Hearing : 21.04.2022 :: Date of Judgment:09.05.2022

The Appellant, by filing this Appeal under Section- 100 of the

Code of Civil Procedure (for short, ‘the Code’) has assailed the

judgment and decree dated 30.03.1988 and 15.04.1988 passed by the

learned 2^nd Additional District Judge, Berhampur in Title Appeal No.29

of 1987 (T.A. No.60 of 1986 GDC).

By the same, the Appeal filed by the Respondents under Section-

96 of the Code has been allowed and the judgment and decree dated

07.07.1986 and 15.07.1986 respectively passed by the learned Sub-Jude,

Aska in Title Suit No.81 of 1983 have been set aside.

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The Present Appellant, being the Plaintiff, had filed the suit for

declaration that the tope situated on the suit land is his half share which

had been allotted to him in the partition between him and his brother,

the Respondent No.1 (Defendant No.1) seeking further declaration that

the Respondent No.2 (Defendant No2) has no interest on the aforesaid

property and for permanent injunction. The suit having been decreed,

the Respondents (Defendants) having suffered from the same, having

filed the Appeal, the Appellant (Plaintiff) has been non-suited as per the

decision of the First Appellate Court.

It may be stated here that Respondents 1 and 2 (Defendants 1 and

2) having died during pendency of this appeal, their names have been

deleted in the cause title as they have left no other legal representatives

other than the rest of the Respondents. The Defendant No.4 being dead,

his legal representatives have come on record.

2.

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.

3.

One S. Rajib Raju is the father of Plaintiff and Defendant No.1.

The Defendant No.2 is the wife of Defendant No.1 whereas the

Defendants 3 and 4 are his sons. Sister of the Plaintiff and Defendant

No.1 is Defendant No.5. Said Rajib had a brother, namely, S. Narasingh

Raju, who is elder to him. Sibaram Raju is the son of S. Narasingh Raju.

It is stated that Sibaram, Sanyasi (Plaintiff) and Satyanarayan

(Defendant No.1) partitioned their properties way back in the year 1955

under the registered deed of partition. However, the Plaintiff and

Defendant No.1 continued to live jointly with their properties while

family of Rajib and Narasingh lived jointly. The Defendant No.1 was

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carrying on tobacco business and was handling the same independently.

In the said business, he sustained heavy loss and owed huge money to

be paid to the merchants. The Defendant No.1 then suggested that their

family properties be so kept beyond the reach of the creditors. For this

purpose, they too executed nominal deeds of transfer of their properties,

which they obtained in the partition in favour of their mother and sister

and the Defendant No.2, who is the wife of Defendant No.1. It is the

case of the Plaintiff that all most all the properties except Ac.12.00

decimals of land located in Village-Dhaumal was kept nominally in the