DIBAKAR SAHU Vs. SUMITA SAHU

JUDGEMENT

(1.) The original Appellant, namely, Dibakar Sahu, had filed this Second Appeal under Sec. 100 of the Code of Civil Procedure (for short, 'the Code') in assailing the judgment and decree dtd. 3/9/1993 and 13/9/1993 respectively passed by the learned District Judge, Sundergarh, in Title Appeal No.26 of 1992.

(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 is that her husband, namely, Iswar Sahu and the Defendant are two brothers and the land described in the plaint schedule stands jointly recorded. For convenience, two brothers were having separate cultivation without carrying out any partition by metes and bounds. The possession of the separate lands by two brother and their cultivation etc. are all said to be merely for convenience. It is stated that after the death of Iswar, the Plaintiff inherited her husband's property including the share that he had in the property which stood jointly recorded with the Defendant, i.e, the suit land and remained in cultivating possession of the said portions of the land as were being cultivated by her husband. It is stated that the Plaintiff is the only heir of Iswar. Some time before filing of the suit, the Plaintiff had requested the Defendant to make a partition of the suit properties and that having not been acceded to, the suit has been filed. The Defendant, while traversing the plaint averments, vehemently resisted the locus of the Plaintiff in filing the suit by asserting that she is not the legally married wife of Iswar. It is stated that she was his mistress and for said reason, she was residing in the house of Iswar, but for that, she cannot inherit the properties of Iswar. It is stated that she had married to one Golbadan Sahu of village Satkuta and during the lifetime of Golbadan, she was staying with Iswar as his mistress. It is also stated that the Plaintiff never cultivated the suit land on her own right as the legal heir and successor of Iswar being his wife. It is stated that the Defendant is the only heir to succeed to the entire suit land. He, therefore, urged for dismissal of the suit.