BANSIDHAR SETHI Vs. KUSUMA DEI

JUDGEMENT

(1.) Both these appeals arise out of a common judgment dated 5.10.2004 passed by the learned Ist Additional District Judge, Cuttack in Title Appeal Nos. 25 and 95 of 2000 . The learned lower appellate court while dismissing the Title Appeal No. 95 of 2000 preferred by the present appellants and allowing the Title Appeal No. 25 of 2000 filed by the respondents reversed the judgment and decree of the learned Civil Judge (Junior Division passed in T.S. No. 147 of 1997. Both the appeals have been admitted on the following substantial question of law:-

(2.) The facts leading to both the above appeals are required to be referred to in gist.

(3.) The plaintiff's case was that the suit land originally belonged to one Madan Sethi, the father of the plaintiff - Sulochana, who is the common ancestor of all the parties. The said Madan Sethi died prior to 1944 leaving behind two widows, namely, Nima Bewa and Udia Bewa, a married daughter (plaintiff-Sulochana) and a minor son, namely, Babaji Sethi (through Udia). The defendant No.1 is the widow and the defendants 2 to 8 are the sons and daughters of late Babaji Sethi. After the death of Madan Sethi, both his widows gifted away half portion of the suit schedule property from southern part measuring Ac.0.03 decimals with two thatched rooms in favour of the plaintiff by executing and registering a gift deed. Babaji Sethi lived in the northern half of the suit schedule property, who died in 1955 and his legal heirs, the defendants, continued to possess the suit land, which was in possession of late Babaji Sethi. By passage of time, dissension arose in the family, for which the plaintiff approached the local Panchayat for a decision in the matter and there being noncooperation from the defendants, the plaintiff filed the suit.