AMBALIKA PADHI Vs. RADHAKRISHNA PADHI

JUDGEMENT

(1.) This Civil Appeal is preferred by the plaintiffs against the judgment and decrees of the Orissa High Court made in three appeals viz., F..A. No, 145 of 1971, F.A. No. 9 of 1972 and F.A. No. 15 of 1972 (reported in AIR 1981 Orissa 63),

(2.) The suit was instituted by Smt. Urmila Padhi for declaration of her title to plaint B schedule lands and confirmation of her possession thereon. The basis of her claim was the partition effected on 22-6-1968. Alternatively, she prayed for a fresh partition. (Certain other minor reliefs were sought for which need not be set out here). According to her, Judhishter (D-1) and Srinivas were brothers. Defendants 2 and 3 are the sons of first defendant. Srinivas had a son, Khalli who died long prior to the institution of the suit. Plaintiff is his widow. First defendant was the karta of thejoint family and was managing its affairs. In the year 1967, there was a partition wherein plaintiff was given six annas' share while 10 annas' share was kept by first defendant and his family. A deed of partition was executed on 22-6-1968 and registered on 27-6-1968. Since then, parties are in separate possession and enjoyment of the lands falling to their respective shares. Plaintiff was atflicted by cancer. D-4 is her sister. She appointed the husband of the fourth defendant as her power of attorney-holder to manage her properties. On 31-10-1968, she executed a deed of settlement in respect of some of her properties (mentioned in plaint-D schedule) in favour of fourth defendant and simultaneously cancelled the power of attorney in favour of her husband. On 24-1-1969, she executed a will in favour of her brother,s son in respect of her remaining properties. While she was at Cuttack, defendants 1, 2 and 3 did not allow her or her representatives/ agents to harvest the paddy or collect the uslufruct from her lands. Hence the suit.

(3.) Plaintiff Urmila died pending the suit. Her brother's son Bhojakrishna Panda came on record as her legal representative on the basis of the will dated 24-1-1969. Fourth defendant supported the plaintiffs case and later transposed as plaintiff No. 2.