KAMALINI DEI Vs. KUNTI DEI

JUDGEMENT

(1.) The original Appellant, namely, Kamalini Dei, by filing this Appeal under Sec. 100 of the Code of Civil Procedure (for short, 'the Code'), had assailed the judgment and decree dtd. 25/7/1994 and 8/8/1994 respectively passed by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna in Title Appeal No.14 of 1989. By the same, the Appeal filed by said Kamalini under Sec. 96 of the Code in challening the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna in Title Suit No.61 of 1982 has been dismissed and thereby the decision of the Trial Court has been upheld. The Trial Court, in the suit filed by Kunti Dei, has passed the preliminary decree holding her entitlement to half share over the suit properties. It may be stated at this stage that the original Appellant Kamalini having died during pendency of this Appeal, her legal representatives have come on record and they are now pursuing this Appeal. The original Respondent since has expired, her legal representatives are before this Court as Respondent No.1(a) to 1(c).

(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 one Durbadal is the owner of the properties described in Schedule-A and B of the plaint and it stood so recorded in his name. He died in the year 1961 leaving behind his wife Laxmi and two daughters, namely, Sangyabati and Kamalini. Sangyabati pre-deceased her mother Laxmi, leaving behind her daughter Kunti, the original Plaintiff. It is stated that after the death of Durbadala, the lands were recorded in the name of Laxmi as its owner. So, it is said that the Plaintiff, being her daughter, is entitled to half share whereas the other half stands as the entitlement of Kamalini (original Defendant). It is alleged that Kamalini had fraudulently obtained a deed of gift from her mother, Laxmi in respect of the entire properties in the year 1966, which was later on cancelled by Laxmi in the year 1969. Thereafter, the suit land was managed to be mutated in the name of the Defendant. In an Appeal being moved before the Sub-Divisional Officer, Bhawanipatna, the mutation order passed by the Tahasildar, has been set aside and thereafter, it being assailed by Kamalini before the Member of Board of Revenue, Orissa, the order of cancellation of mutation has been upheld in Revenue Case No.1226/71. It is her case that Laxmi and Kamalini were in enimical terms for which, a proceeding under Sec. 145 Cr.P.C. was initiated. In that proceeding, the parties entered into a compromise. It is next stated that in the year 1976, by virtue of the mutual partition, the Plaintiff cultivated Schedule-A land as of her share and lands under Schedule-B remained under cultivating possession of Kamalini. It is stated that Laxmi was all along in possession of the suit land till the partition in the year 1976. On 30/7/1982, the Defendants tried to forcibly cultivate Schedule-A land. Therefore, the suit has come to be filed after the request of the Plaintiff for partition was turned down.