PADMA CHARAN JENA Vs. PRASANNA KUMAR JENA

JUDGEMENT

(1.) The Appellants, by filing this Appeal under Sec. 100 of the Code of Civil Procedure (for short, 'the Code') have assailed the judgment and decree dtd. 7/7/2004 and 22/7/2004. By the same, the dismissal of the suit in respect of part property as ordered by the Trial Court being confirmed; the cross-Appeal filed by the Respondents-Defendants has been allowed in finally setting aside that decree passed in respect of part property in favour of the Appellants-Plaintiffs and thereby the suit filed by the Appellants-Plaintiffs has been dismissed in entirety.

(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 one Bandhu Jena and Sanyasi Jena are two brothers. During their lifetime, they were in joint mess and estate. They owned and enjoyed the lands. On their death, their sons succeeded the properties. In the last settlement, the suit land is said to have been wrongly recorded in the name of Gourahari Jena, the younger brother of Padmacharan Jena (original Plaintiff). The Defendants are the two sons of said Gourahari Jena. Despite such wrong recording of the land as both brothers, namely, Padmacharan jena and Gourahari Jena were in good terms, there was no discontentment and they were sailing together and also alienating the lands jointly. It is stated that the suit land are the lands of the Plaintiffs which had fallen to the share of his father Gourahari in a partition which had been effected on 26/5/1956. The father of the Defendants, namely, Gourahari died in the year 1999 leaving behind his three sons, namely, Prasanna, Prasanta and Sushanta. Prasanta left the village since 1992 and his whereabouts was not known. It is said that he is unheard of since then. Allegation is being made that on 7/11/2001, the two brothers, namely, Prasanna and Prasanta (Defendants) declared in public that they would be selling all the lands recorded in the name of their late father Gourahari. The original plaintiff thus filed the suit claiming that he has share over the said land which is recorded in the name of Gourahari, the father of the Defendants and prayed for declaration of his absolute ownership over the suit land with further relief of injunction as against the Defendants from creating any third party interest over those lands.