RATHA BEHERA Vs. GANGEI BEHERA

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are appellants before this Court against a confirming judgment. Respondent No. 1 filed the suit for partition of the suit properties and allotment of 3/4th share in his favour. The suit having been preliminarily decreed the defendants 1 and 3 preferred an appeal before the learned Additional District Judge, Jajpur and the appealhaving been dismissed the present Second Appeal has been filed by defendants 1 to 3.

(2.) CASE of the plaintiff respondent is that late Sindhu Behera was the original owner of the suit properties and the plaintiff is his natural born son. Prior to birth, his parents had adopted one Bali Behera, father of defendants 1 to 6. Sindhu Behera died sometime in the year 1926 and the current settlement operation having been completed by that time, name of Sindhu Behera appeared in the record of rights without any correction. Further case of the plaintiff is that he being the natural son of late Sindhu Behera is entitled to 3/4th interest in the properties, whereas Bali Behera being the adopted son is entitled to 1/4th interest in the suit properties. It is alleged by the plaintiff that since the defendants started creating trouble in peaceful possession of the plaintiff over the suit land, he requested the defendants on 14,4.1982 for partition of the suit properties, but they did not agree and accordingly the suit was filed for partition and allotment of shares. Defendants 7 to 9 being purchasers were impleaded as parties.

(3.) ON the basis of the pleading of the parties learned Subordinate Judge, Jajpur framed four issues and issue No. 3 relates to the question as to whether Bali Behera is the adopted son or natural born son pf Sindhu. Considering the oral and documentary evidence available on record the learned Subordinate Judge came to a finding that Bafi was the adopted son of Sindhu and was not his natural born son. While answering issue Nos. 1 and 2 relating to maintainability of the suit as well as entitlement of share by the plaintiff, the learned Subordinate Judge referring to Article 497 of the Hindu Law held that not only the suit is maintainable but also the plaintiff is entitled to 3/4th interest in the properties left by Sindhu, whereas defendants 1 to 6 are entitled to 1/4th interest therein. On the above finding the suit having been decreed preliminarily an appeal was carried before the learned Addl. District Judge, Jajpur by defendants 1 and 3. The lower Appellate Court considering the evidence adduced by both parties concurred the finding of the Subordinate Judge and dismissed the appeal giving rise to the present Second Appeal.