PRAMILA DALEI Vs. MADHAB DALEI

JUDGEMENT

(1.) The Appellants, by filing this Appeal, under Sec. 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the judgment and preliminary decree passed by the learned 3rdAdditional District Judge, Puri, in RFA No.20/64 of 2018/2013 for partition of the property described in the schedule of the plaint declaring 1/4thshare of each of the Respondents-Plaintiffs and 1/4thshare to Jagannath Dalei, the original Defendant therein (since dead), who is the predecessor-in-interest of these Appellants. The suit having been preliminarily decreed by the Trial Court declaring that each of the Respondents (Plaintiffs) are entitled 1/4thshare over the suit property, said Jagannath Dalei, the original Defendant being aggrieved by the said judgment and preliminary decree passed by the Trial Court had filed the Appeal under Sec. 96 of the Code. During pendency of that Appeal, said Jagannath Dalei, the Appellant therein (sole Defendant) having died, the present Appellants who are the legal representatives pursued the said Appeal. The Appeal has been dismissed and thereunder the judgment and preliminary decree passed by the Trial Court in the suit have been confirmed. Hence, the present Second Appeal is at the instance of these Appellants (substituted Defendants).

(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 Trial Court.

(3.) Plaintiffs case is that the suit property is their ancestral property and they as well as Jagannath Dalei (original Defendant) have been possessing the same jointly by inheriting the same from their ancestor. Plaintiffs and the original Defendant are the four sons of late Das Dalei. In the Sabik Record of Right of the year 1927, land under Khata No.46 of Mauza-Kathuaredi was recorded in the name of Narayan Daalei, Ghana Dalei and Rohini Bewa under Plot No.210, 211 and 215 measuring Ac.0.13 dec., Ac.0.29 dec. and Ac.0.02 dec. respectively. Rohini was possessing land measuring Ac.0.13 dec. under Plot No.210 whereas Narayan and Ghana were possessing Ac.0.29 dec. pertaining to Plot No.211 and Ac.0.02 dec. under Plot No.215. Rohini died issueless and land measuring Ac.0.13 dec. pertaining to Plot No.210 under Khata No.46 devolved upon Narayan Dalei and Ghana Dalei. Subsequent thereto, Narayan and Ghana partitioned those properties relating to Plot No.211, 215 and 210 measuring Ac.0.29 dec., Ac.0.02 dec. and Ac.0.13 dec. respectively; in total coming to Ac.0.44 dec. in two equal shares. Ghana possessed the western half whereas the eastern half was possessed by Narayan. On the death of Narayan, the sons of Das Dalei, the father of the Plaintiffs and the Defendant inherited and possessed those properties of Narayn Dalei. After the death of Das Dalei, the Plaintiffs and original Defendant inherited the same and remained in possession. It is further stated that by the time of Settlement Operation in the said Mauza, Das Dalei and his wife were dead. The Plaintiffs and Defendants (since dead) were in joint mess. The original Defendant was in-charge of the joint undivided property as the Karta of the family and he too was looking after the Settlement and Consolidation Operation. It is alleged that by practicing fraud, the original Defendant got his name recorded in both the Settlement and Consolidation Record of Right relating to the suit land to the exclusion of others (Plaintiffs). When the Plaintiffs approached the original Defendant for partition of the suit property, he refused. Therefore, the suit has come to be filed.