Advocates:
['M/S B H MOHANTY', 'D P MOHANTY', '', 'R K NAYAK', 'T K MOHANTY', 'S N MOHANTY', 'M/S P C MISHRA', 'T BARIK']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

RSA No.13 of 2002

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

Procedure assailing the judgment and decree dated 02.04.2002 and

16.04.2002 respectively passed by the learned District Judge, Keonjhar

in Title Appeal No.43 of 2002 setting aside the judgment and decree

dated 01.09.2001 and 06.09.2001 respectively passed by the learned

Civil Judge, Senior Division, Keonjhar in T.S. No.67 of 1998.

----

Jagabandhu Majhi (Since dead)

through his LRs

….

Appellants

-versus-

Hira Mjahi (Since Dead) & Others

….

Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode):

For Appellants

-

Mr.D.P. Mohanty

(Advocate)

For Respondents -

Mr.P.C. Mishra and

T.Barik

(Advocates)

CORAM:

MR. JUSTICE D.DASH

Date of Hearing : 18.05.2022 :: Date of Judgment:20.06.2022

The original Appellant, by filing this Appeal under Section- 100

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

judgment and preliminary decree dated 02.04.2002 and 16.04.2002

respectively passed by the learned District Judge, Keonjhar in Title

Appeal No.43 of 2002. The said original Appellant having died, his

legal representatives have come on record and are pursuing this Appeal.

// 2 //

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The First Appeal filed by the Respondent No.1 (Defendant No.3)

under section 96 of the Code, being aggrieved by the judgment and

preliminary decree dated 01.09.2001 and 06.09.2001 respectively

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

No.67 of 1998, has been allowed and the Trial Court, having decreed

the suit holding the Respondent No.1 (Defendant No.3), Respondent

No.4 (Defendant No.4), Respondent No.6 (Defendant No.6) and

Respondents 7 and 8 (Defendant No.7(a) and 7(b) respectively) to be

not entitled to any share in Schedule-B and Schedule-C properties and

directing the original Appellant (Plaintiff), Respondent No.2 (Defendant

No.1), Respondent No.3 (Defendant No.2), Respondent No.5(Defendant

No.5) and Respondnet No.7 (now Respondent 7(a) & 7(n) and

Defendant No.8 in the Trial Court to effect partition holding their shares

as indicated therein; in the First Appeal all the parties have been held

entitled to their shares as stated in the order therein.

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 original Plaintiff, whose legal representatives having been

substituted are now pursuing this appeal, had filed the suit for partition

of Schedule-B properties amongst himself and Defendants 1 to 8 as well

as partition of Schedule-C properties amongst himself and Defendants 1

and 2 followed by allotment of their shares therein and drawal of the

preliminary decree.

It is stated that one Biswanath Majhi is the common ancestor. In

order to avoid confusion and for better appreciation, said Biswanath, the

common ancestor is hereinafter referred to as ‘Old Biswanath’. He had

// 3 //

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two sons, namely, Khetrabasi and Laxman. Khetrabasi died leaving

behind his three sons, namely, Jagabandhu (Plaintiff), Shyam

(Defendant No.8) and Biswanath as well as two daughters, namely, Hira

(Defendant No3) and Basanti (Defendant No.4). It may be stated here

that the parties being Santal by caste and as such are members of

Scheduled Tribe Community, ordinarily one of the grandsons through

son takes the name of the grandfather. Old Biswanath had another son,

namely, Laxman, who died leaving his wife Bhabi (Defendant No.5)

and as they had no sons but two daughters. This Shyam son of

Khetrabasi had been taken on adoption by Laxman being so given by

Khetrabasi. Biswanth, son of Khetrabasi died dleaving behind his wife

Budhuni (Defendant