Advocates:
['AKSHAYA KUMAR SAHOO', '', 'P K SATPATHY', 'A K PARIDA', 'A KALASH']

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RSA No.145 of 2022

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.145 of 2022

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

assailing the judgment dated 17.03.2022 passed by the learned

Additional District Judge, Sundargarh in R.F.A. No.12/30 of 2018-21

confirming the judgment and decree dated 23.03.2018 and 29.03.2018

respectively passed by the learned Senior Civil Judge, Sundargarh in

Civil Suit No.488 of 2015.

----

Abhayati Kumbhar

….

Appellant

-versus-

Satyabhama Kumbhar & Another

….

Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode):

For Appellant

-

Mr.A.K.Sahoo

(Advocate)

For Respondents -

CORAM:

MR. JUSTICE D.DASH

Date of Hearing :14.11.2022 : Date of Judgment:25.11.2022

D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the

Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the

judgment dated 17.03.2022 passed by the learned Additional District

Judge, Sundargarh in R.F.A. No.12/30 of 2018-21.

By the same, the Appeal filed by the present Appellant being

aggrieved by the judgment and preliminary decree dated 23.03.2018 and

29.03.2018 respectively passed by the learned Senior Civil Judge,

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RSA No.145 of 2022

Sundargarh in Civil Suit No.488 of 2015, under section 96 of the Code

has been dismissed. Thereby, the suit filed by the present Respondents

as the Plaintiffs having been preliminarily decreed by the Trial Court

declaring that each of the Respondents (Plaintiffs) and the Appellant

(Defendant) are entitled to 1/3rd share over the suit scheduled property;

the same has been confirmed by the First Appellate Court.

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.

Plaintiff’s case is that one Hadu is the common ancestor of the

parties. He got married to Bhagabati for the first time and the Defendant

is the daughter born out of the said wedlock. After the death of the first

wife, Hadu married Satyabhama, the Plaintiff No.1 and the Plaintiff

No.2 is the daughter of Hadu through Satyabhama.

4.

It is stated that schedule ‘A’ and ‘B’ properties are the ancestral

properties on the hands of Hadu and as such exclusively recorded in his

name. It is further stated that schedule ‘C’ property is the self acquired

property of Hadu which have been recorded in his name as such.

5.

It is stated that the parties are Gonda by Caste and as such

members of the Schedule Caste community and they being Hindus are

governed by Mitakshara School of Hindu law.

6.

According to the case of the Plaintiffs, there has been no partition

of the suit scheduled land described in schedule ‘A’ to ‘C’ after the

death of Hadu and, therefore, each of them is entitled to 1/3rd share over

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RSA No.145 of 2022

it. Plaintiff’s claim for partition having not been accepted by the

Defendant, the suit has come to be filed.

7.

The Defendant, in the written statement, while traversing the

plaint averment, has admitted the inter se relationship of the parties. It is

also admitted that the lands in schedule ‘A’ to ‘C’ stand recorded in the

name of Hadu. The specific plea of the Defendant No.1 is that her father

named Hadu, being satisfied with her service as she had been looking

after him, had declared that the Defendant will get the land measuring

Ac.0.060 decimals appertaining to Plot No.1106 under Khata

No.382/100 of Mouza Amlipali and Ac.0.740 decimals of land under

Plot No.243/3199 signed of Khata No.38 of village Chitabhanga. The

claim of the Plaintiff for partition was thus refuted.

8.

The Trial Court, on the rival pleadings, having framed four issues,

on examination of evidence in the backdrop of the rival pleadings and

upon their evaluation, has