Advocates:
['A K NAYAK', 'M/S A K RAO', '', 'M K MOHANTY', 'S P DAS', 'P K SANDH', 'S K RATH', 'M SAMPAT', 'J K JENA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

SA No.92 of 1997

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

Procedure assailing the judgment and decree dated 04.01.1997 and

18.01.1997 respectively passed by the learned District Judge,

Mayurbhanj, Baripada in Title Appeal No.21 of 1990 confirming the

judgment and decree dated 08.12.1989 and 20.12.1989 respectively

passed by the learned Civil Judge, Senior Division, Baripada in T.S.

No.44 of 1987.

----

Budhuram Majhi & Another

….

Appellants

-versus-

Jhana Majhi (Since Dead) and

Others

….

Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode):

For Appellants

-

Mr.A.K. Nayak

(Advocate)

For Respondents -

Mr.A.K. Rao, M.K. Mohanty,

S.P. Das, P.K. Sandh,

S.K. Rath, M. Sampat &

J.K. Jena

(Advocates)

CORAM:

MR. JUSTICE D.DASH

Date of Hearing : 16.05.2022 :: Date of Judgment:20.06.2022

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

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

judgment and preliminary decree dated 04.01.1997 and 18.01.1997

respectively passed by the learned District Judge, Mayurbhanj, Baripada

in Title Appeal No.21 of 1990.

// 2 //

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By the same, the Appeal filed by the present Appellant No.1

(legal representative of the Defendant No.1, who had been substituted as

the Appellant No.1 and the Appellant No.2 (Defendant No.2) under

Section-96 of the Code in challenging the judgment and preliminary

decree dated 08.12.1989 and 20.12.1989 respectively passed by the

learned Civil Judge, Senior Division, Baripada in T.S. No.44 of 1987,

has been dismissed. Thereby, the judgment and preliminary decree

passed by the Trial Court holding the entitlement of Respondent No.1,

namely, Jhana Majhiani, wife of Kamalakanta Majhi (original Plaintiff)

to 1/3^rd share; the entitlement to 1/3^rd share and Defendant No.2 and

2(A) having the entitlement to rest 1/3^rd share over Schedule-B and D

properties have been confirmed.

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.

The Plaintiff’s case is that one Ratan Majhi was the common

ancestor of the parties and he had two sons, namely, Bada Durga and

Nimai. Said Nimai died unmarried. The Plaintiff, Defendant No.1 and

one Salama are the three daughters of said Bada Durga. Salama is

survived by Defendant No.2 and 2(A).

It may be stated here that the Original Plaintiff having died during

pendency of this Second Appeal, her legal representatives, have come

on record.

Defendant No.1 having died during pendency of the First appeal

filed by her, has been substituted by her son and daughter, who pursued

the First Appeal and have finally lost and this present Second Appeal

has been filed by them.

// 3 //

Page 3 of 6

It is stated that Bada Durga had two houses as shown in Schedule-

D of the plaint and Plaintiff has 1/3^rd share over those houses. It is stated

that Defendant No.1 in a surreptitious manner had got her father’s land

recorded in her name. The Plaintiff, therefore, claims 1/3^rd share over all

those properties. The Defendant No.1 since dead, the predecessors-in-

interest of these Appellants, who have come to be substituted in her

place, have taken a stand that after the death of her father, she got her

two sisters married and all such expenses for the purpose had been

borne by her and her husband. It is also stated that her husband was kept

by her father as illatom-son-in-law and, therefore, the Plaintiff and the

Defendant No.2 and 2(A) are not entitled to any share over the

properties, which entirely is her legitimate entitlement.

4.

The Defendant no.1 has filed the written statement and she has

tak