IN THE HIGH COURT OF ORISSA : CUTTACK

RSA No.280 of 2011

In the matter of appeal under Section-100 of the Code of Civil

Procedure assailing the judgment and preliminary decree passed by the

learned District Judge, Bolangir in RFA No.40 of 2007 confirming the

judgment and decree passed by the learned Civil Judge (Senior

Division), Patnagarh in C.S. No. 156 of 2002.

………

Purusottam Sahu

::::

Appellant.

-:: VERSUS ::-

Khyamananda Sahu & Others

::::

Respondents.

Advocate(s) who appeared in this case by hybrid arrangement

(virtual/physical) mode.

For Appellant

…

M/s. A.K Tripathy, P.K. Nayak, U.C.

Barik & P.Kar, Advocates

For Respondents

…

M/s. A.P. Bose, N. Hota, R.K.

Mohanta, D.J. Sahoo, S.S.

Routray & Mrs. V. Kar,

Advocates.

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CORAM :

MR. JUSTICE D. DASH

Date of Hearing & Judgment:06.01.2022

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

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

judgment and preliminary decree passed by the learned District Judge,

Balangir in RFA No.40 of 2007.

By the said judgment and preliminary decree, while dismissing

the Appeal filed by the Appellant (Defendant No.1) under section 96 of

the Code, the First Appellate Court has confirmed the judgment and

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preliminary decree passed by the learned Civil Judge (Senior Division),

Patnagarh in C.S. No.156 of 2002 filed by the Plaintiffs arraigning the

Appellant as the Defendant No.1 and one Paramanda Sahu as Defendant

No.2.

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 Trial Court.

3.

Plaintiffs’ case:-

One Jaganath had a son namely, Chakradhar. Chakradhar had

married Sana. On the death of Sana, Chakradhar again married Padmini.

The Defendant No. 1 is the son of Chakradhar through Sana. The two

Plaintiffs and Defendant No. 2 are three sons of Chakradhar through his

second wife Padmini. One part of the suit land measuring Ac.30.82

decimals stands recorded in the name of Jaganath and another part of the

suit land extending Ac.29.15 decimals stands recorded in the name of

Chakradhar. Upon death of Chakradhar, the parties remained under joint

possession and enjoyment of the properties. When the size of the family

grew, sometime in the month of October, 2002, the Plaintiffs

approached the Defendants for partition of the entire properties as

aforesaid in metes and bounds. The Defendants having declined the

request, the Plaintiffs filed the suit for partition of the properties.

4.

The Defendant No. 1 coming to contest the suit in filing the

written statement has stated that the Defendant No. 2 had earlier filed a

suit for partition in the Court of Munsif, Patnagarh vide T.S. No. 7 of

1977 that the suit later on being transferred to the Court of learned Civil

Judge (Senior Division), Patnagarh was renumbered as T.S. No. 7/31 of

1977 which ultimately was dismissed for default. It is stated that in view

of the said institution of the suit, Chakradhar sensing the dissention

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amongst his three sons settled Ac.15.38 decimals of land, from out of

the Holding No. 44 and Ac. 12.05 decimals of land from Holding No.

37 in favour of Defendant No. 1 under a deed of acknowledgment dated

25.10.1977. The Defendant No.1 claimed that he thus was separated

from the family and has been in exclusive and peaceful enjoyment of the

said properties. Thus he has taken the defence that in view of the above

severance of joint status and settlement of the land by his father in his

favour, the suit for partition is not maintainable.

5.

On the above rival pleadings, the Trial Court framed five issues.

Coming to answer the crucial issue as to the previous partition of the

suit properties taken as defence by the Defendant No. 1 in thwarting the

suit