Advocates:
['M/S RAMAKANTA MOHANTY', '', 'A P BOSE', 'P K SAMANTARAY', 'S K MOHANTY', 'D R MOHANTY', 'S N BISWAL', 'M/S S J PRADHAN', '', 'B SAHOO', 'P K PATNAIK', 'P K PATEL', 'A TRIPATHY']

IN THE HIGH COURT OF ORISSA, CUTTACK

R.S.A. NO. 590 OF 2005

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

Procedure assailing the judgment and decree passed by the learned 2^nd

Adhoc Addl. District Judge, Sundargarh in RFA No.74 of 2004 set aside

the judgment and decree passed by the learned Civil (Senior Division),

Sundargarh in Title Suit No. 61 of 2001.

………

Rameswar Lal Agarwal (Dead)-now through

Subash Kumar Agarwal as per order

Dated 14.03.2022.

::::

Appellant

-:: VERSUS ::-

Banwarilal Sahu & Others

:::: Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode)

For Appellant

::::

M/s. Ramakanta Mohanty,

S.N.Biswal, A.P.Bose,

P.K.Samantaray, S.K.Mohanty,

D.R.Mohanty, Advocates.

For Respondents ::::

M/s. S.J.Pradhan, B.Sahoo, P.K.Patnaik,

P.K.Patel, A.Tripathy, Advocates

CORAM:

MR. JUSTICE D.DASH

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DATE OF HEARING::14.03.2022::DATE OF JUDGMENT::14.03.2022

-----------------------------------------------------------------------------------------

D.Dash, J.

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

of Civil Procedure (hereinafter called as ‘the Code’) has assailed the

judgment and decree passed by the learned 2^nd Adhoc Addl. District Judge,

Sundargarh in RFA No.74 of 2004.

// 2 //

By the said judgment and decree, the First Appellate Court having

allowed the Appeal filed by the Respondents (Plaintiffs) under Section-96

of the Code has set aside the judgment and decree passed by the learned

Civil (Senior Division), Sundargarh in Title Suit No. 61 of 2001. The Trial

Court having dismissed the suit filed by the Respondents as the Plaintiffs

has decreed the suit in part; declaring his right, title and interest over the

undivided half share which is his vendor had over the land in Schedule-A

of the Plaint and directing that he cannot be dispossessed by the

Respondents (Plaintiffs) from the suit schedule property or any part thereof

without taking recourse to law; further keeping it open for the Appellant

(Defendant) to get his half share and separate possession over the suit

property worked out seeking partition.

It is pertinent to mention here that upon hearing learned Counsels for

the parties, this Appeal had been disposed of by judgment dated

10.01.2022. However, an application being filed by one Subash Kumar

Agarwal, one of the sons of the original Appellant (Defendant) intimating

the death of the sole Appellant on 28.10.2020, that judgment has been

recalled. Said Subash Kumar Agarwal having prayed for his substitution

one of the legal representatives of the deceased Appellant (Defendant) and

also claiming as the legatee under a Will said to have been executed by the

// 3 //

sole Appellant (Plaintiff) on 22.06.2020, he has been brought on record in

place of the deceased Appellant for this Appeal keeping the matter as to

due execution and attestation of the Will open for adjudication as and when

so questioned in appropriate proceeding. This exercise being carried out,

the Appeal has been heard afresh.

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

assigned with the position in the Trial Court. The deceased Appellant is

hereinafter referred to as the ‘Defendant’.

3.

Case of the Plaintiffs:-

The land described in Schedule-A of the plaint had been purchased

by one Surju Sahoo and he was residing in the house standing over there

which he had constructed. He had two wives namely, Ramdulari and Surji

@ Surya. Basumati being the daughter of Surji born through her first

husband was also residing there. It is said that Surju Sahoo married to Surji

when she was leading the life of a widow having a daughter and that was

when no issue was born out of his wedlock with his