PARAMANANDA SWAIN Vs. RABINDRANATH SWAIN

JUDGEMENT

(1.) PLAINTIFFS in Title Suit No. 69 of 1988 before the Munsif, Kendrapara in a suit for declaration of title, permanent injunction and pre -emption, having been unsuccessful in both the Courts below, have filed this appeal.

(2.) IT is averred in the plaint that the plaintiffs have derived their title from their common ancestor Kelei Swain. They partitioned their properties in the year 1963. In the said partition, Benudhar, son of Gokhei got 'A Schedule land to his share. Plaintiff No.1 is his son whereas plaintiff No.2 is the wife. Benudhar has another son, namely Nityananda, who has two sons and two daughters, namely, Defendants 1, 2, 4 and 5. It is further alleged that in the year 1986 the Defendant No.6 belonging to the branch of Sankar in collusion with the Defendant Nos. 1 to 3 obtained a sale deed fraudulently in respect of 'B schedule properties which is a part of 'A schedule lands without the knowledge of the plaintiffs though it was the joint family property belonging to the plaintiffs and Defendant Nos. 1 to 5.

(3.) THE appellate Court upon the death of plaintiff No.2 impleaded legal heirs. In case no final decree is passed nor engrossed in stamped paper, the preliminary decree should be inoperative, as contended by the appellants. The oral partition is not also permissible U/s. 19 of the O.L.R. Act. The compromise decree, according to the appellants, requires registration. The deceased -appellant No.2 was not given any share as there was fraud played on her.