SANTILATA SAHOO Vs. KANCHANLATA DAS

JUDGEMENT

(1.) The Appellants, by filing these Appeals, under Sec. 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the judgment and decree dtd. 5/9/2019 and 18/9/2019 respectively passed by the learned 1st Additional District Judge, Bhubaneswar in R.F.A. No.119 of 2018 and the Cross Appeal No.8 of 2018 arising therefrom. The Respondent No.1 as the Plaintiff had filed Civil Suit No.279 of 2012 in the Court of Civil Judge, Senior Division, Bhubaneswar. The suit having been dismissed on the ground that it is not maintainable for the reliefs claimed while recording the findings on all other controversial issues in favour of the Respondent No.1 (Plaintiff); the Respondent No.1 (Plaintiff) had carried the Appeal under Sec. 96 of the Code. The Appellants being the Defendant No.1 to 4 had filed the Cross Appeal challenging the findings returned by the Trial Court in favour of the Plaintiff and against them. The First Appellate Court has allowed the Appeal and decreed the suit filed by the Respondent No.1(Plaintiff). Accordingly, the Cross Appeal filed by the Appellants (Defendant No.1 to 4) has been dismissed. The present Second Appeals are at the behest of the aggrieved Defendant Nos.1 to 4 as the Appellants.

(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.) Plaintiff's case is that, she, Defendant No.1 and Defendant No.5 are three daughters of late Kalandi and late Mala. Defendant No.2 is the husband of Defendant No.1 whereas Defendant No.3 and 4 are the sons of Defendant No.1 and 2. Defendant No.1 and 2 have two other daughters, namely, Mani and Jhili, It is stated that the Defendant No.1 to 4 being in collusion with each other in order to grab the suit properties of the parents of the Plaintiff filed a collusive suit i.e. Title Suit No.515 of 1998 for partition of the property of Kalandi and Mala. The suit was filed by the Defendant No.3 as the Plaintiff and Kalandi, Mala, as well as these Defendant No.1, (daughter of Kalandi and Mala), Defendant No.2 (husband of Defendant No.1) and the Defendant No.4 (son of Defendant No.1 and 2) had been arraigned as the Defendants in the said suit. Kalandi and Mala at that point of time were not in good state of health and mind. Defendant No.1 and 2 prevailed upon them and by practising fraud, managed to obtain a compromise decree in the said suit. Although, the Defendant No.3 was never adopted by Kalandi and Mala, yet in the said suit, the Defendant No.3 as the Plaintiff had pleaded that Kalandi and Mala having no male issue, Defendant No.1 (Defendant No.4 therein) is their only daughter and Defendant No.3 is their adopted son. All these were also indicated in the compromise decree. It is stated that in the earlier suit there was deliberate suppression of the fact that Kalandi and Mala had two other daughters, who are the Plaintiff and Defendant No.5. The Defendant No.3 in the previous suit falsely pleaded that on the Dola Purnima day of the year 1980, he was adopted by Kalandi and Mala when in fact, there was no such adoption.