(1.) This appeal has been preferred against the judgment and decree passed in T.S. No.75/35 of 2002 03 by the learned Additional District Judge (FTC), Bolangir.
(2.) The appellants have filed the aforesaid appeal for partition of the immovable and movable properties as described in Schedules 'A' & 'B' of the plaint and for recovery of possession of the Schedule 'C' properties. The case of the appellants as plaintiffs is that the defendant No.1 Binod Bihari Tripathy is the husband of the defendant No.2 Snehalata Tripathy. Deceased Durga Charan Tripathy was the son of the defendants 1 and 2. He married the plaintiff No.1 on 14.12.1999 as per the Hindu Rites and Customs and the plaintiff No.2 was born out of their wedlock on 16.12.2000. Durga Charan Tripathy expired on 29.06.2002. The suit Schedule 'A' land, which is the ancestral property of the defendant No.1 and his son, was never partitioned between them, i.e., defendant No.1 and his late son Durga Charan Tripathy at any material point of time. After the death of Durga Charan Tripathy, the plaintiffs and defendant No.2 succeeded to the interest of Durga Charan Tripathy over the Schedule 'A' property.
(3.) Defendants 1 and 2, in their written statement, raised a technical issue of maintainability of the suit on the ground of nonjoinder of necessary parties as well as limitation. They further pleaded that there is no cause of action to bring the suit, although they admitted the relationship between the parties as stated above. It was subsequently stated by them that 'A' schedule property is the self acquired and exclusive property of the defendant No.1. Therefore, the plaintiffs have no share in it. So far as the 'B' schedule property is concerned, the pleadings of the plaintiffs were traversed to asserting that defendant No.2 was made the nominee of late Durga Charan Tripathy and the defendant No.2, being a nominee under the two policies, is entitled to get the entire assured amount under Section 39 of the Insurance Act. They further asserted that the defendants 1 and 2 were treated by the plaintiff No.1 with love and affection. However, after the death of the husband of plaintiff No.1, she voluntarily left them along with plaintiff No.2.