ABDUL HANAN KHAN Vs. DAYAN KHAN

JUDGEMENT

(1.) Instant appeal under Sec. 100 of the Code of Civil Procedure, 1908 is filed by the appellants assailing the impugned judgment and decree promulgated in Title Appeal No.35 of 1991 by the learned Additional District Judge, Jajpur, whereby, the decision of the learned Sub-Ordinate Judge, Jajpur in T.S. No.5 of 1986 was set aside excluding the suit schedule land from the hotchpotch partition on the grounds inter alia that the same is illegal and hence, not tenable in law and thus, liable to be interfered with.

(2.) The appellants are the successors of the plaintiffs, who instituted the suit in T.S. No.5 of 1986 for partition of the schedule property which corresponds to Lot Nos.4 and 5 with allotment of 1/3 share each including defendant Nos.1 to 3. The said suit was contested by above defendants, who filed a joint Writing Statement (WS). Ultimately, the suit was disposed of and decreed against defendant Nos.1 to 3, 5 and 6 on merit and exparte vis-a-vis defendant No.4, consequent upon which, the learned Sub-Ordinate Judge, Jajpur directed the parties to partition the property in question within the stipulated period each being entitled to 1/3 share, failing which, the plaintiffs having the liberty to seek division and allotment of shares by due process of law. Being aggrieved of, defendant Nos.1 to 3 filed the appeal and as mentioned earlier, Title Appeal No.35 of 1991 was allowed overruling the decision in the suit. Since dissatisfied with the impugned judgment and decree in Title Appeal No.35 of 1991, the appellants as the successors-in-interest approached this Court challenging the same.

(3.) Heard Mr. Mohanty, learned counsel for the appellants and Mr. Dhal, learned counsel for the respondents.