Advocates:
['M/S PRABHU PR MOHANTY', '', 'B P DAS', 'A K KANUNGO']

IN THE HIGH COURT OF ORISSA AT CUTTACK

RSA No.357 of 2008

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

assailing the the judgment and decree dated 09.09.2008 and 24.09.2008

respectively passed by the learned Additional District Judge, Gajapati,

Parlakhemundi in R.F.A. No.19 of 2006 setting aside the judgment and

decree dated 08.08.2006 and 23.09.2006 respectively passed by the learned

Civil Judge (Senior Division), Parlakhemundi in C.S. No.5 of 2003.

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Smt. Binodini Adhikari & Others

….

Appellants

-versus-

Sri Sarat Kumar Panda

….

Respondent

Appeared in this case by Video Conferencing Mode

For Appellants

-

M/s.Prabhu Pr. Mohanty, A.K.Kanungo and

B.P.Das, Advocates

For Respondent

-

None.

CORAM:

MR. JUSTICE D.DASH

Date of Hearing : 10.01.2022 :

Date of Judgment: 21.01.2022

The appellants, by filing this Appeal under Section 100 of the Code of

Civil Procedure (for short, ‘the Code’) have challenged the judgment and

decree dated 09.09.2008 and 24.09.2008 respectively passed by the learned

Additional District Judge, Gajapati, Parlakhemundi in R.F.A. No.19 of 2006.

By the said judgment and decree, the Appeal filed by the Respondent

under Section 96 of the Code has been allowed and the judgment and decree

dated 08.08.2006 and 23.09.2006 respectively passed by the learned Civil

Judge (Senior Division), Parlakhemundi in C.S. No.5 of 2003 non-suiting the

Respondent as the Plaintiff has been decreed by declaring the registered Will

dated 29.12.2001 (Ext.F) as invlaid in the eye of law.

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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, in short, is that he is the natural son of

Laxmikanta Adhikari and Saraswati Adhikari. He had been adopted by late

Laxmi Narayan Panda and Bhanumati Panda. The natural as well as adoptive

mother of the Plaintiff are dead. The Defendant No.1 is the wife of Gopal

Krushna Adhikari, who happens to be the natural brother of the Plaintiff. The

Defendant Nos.2 and 3 are the sons of Gopal Krushna. The lands in schedule-

A lands are the agricultural lands and over Schedule-B land, the residential

house stands. These are the subject matter of the suit.

The Plaintiff is the Trustee of the Deity Sri Sri Madanmohan

Mahaprabhu Bijee, Kabichandra Street of Parlakhemundi. The Deity is the

owner of the suit land. It is stated that the natural mother of the Plaintiff had

absolutely no manner of right, title, interest and possession over the said suit

land nor she had purchased the same. It is said that he had purchased the

tenancy right in respect of the suit land from one Bipra Charan Biswasray in

the year 1997 under the registered deed. Bhanumati Panda is stated to be the

owner of the suit house and the same had been allotted to her under a deed of

family settlement dated 03.07.1942. The Plaintiff, being the adopted son of

Bhanumati, thus claims to have the exclusive right, title, interest and

possession over the suit house. Neither the Defendants nor the natural mother

of the Plaintiff stand to have any right, title, interest and possession over the

same. It is alleged that taking advantage of the disturbances and

misunderstanding, amongst the members of the family of Saraswati, the

Defendants have managed to obtain a Will dated 29.12.2001 to their benefit

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and advantage by exercising undue influence, coercion, fraud and

misrepresentation upon Saraswati Adhikari and finally, the same has been

managed to be the registered. By the time of execution of the Will, the age of

Saraswati, the Testatrix was 80 years when she was not in a proper state of

mind and health to know and understand the nature of her disposition. As

stated, being involved in several litigations concerning the fa