CHAMPABATI KHATUA Vs. MURALIDHAR KHATUA

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 dtd. 25/2/2021 and 15/3/2021 respectively passed by the learned District Judge, Jagatsinghpur in R.F.A. No.59 of 2004. The Respondent No.1, as the sole Plaintiff, had filed Title Suit No.200 of 1998 in the Court of the learned Civil Judge, Senior Division, Jagatsinghpur. The suit is for partition. The Trial Court decreed the suit preliminarily entitling the Respondent No.1 (Plaintiff) to 1/20th share over Schedule-B property and 1/5th share over Schedule-C property. The predecessor-in-interest of these Appellants, namely, Prahallad Khatua & Balakrushna Khatua as well as two others, i.e., Bhagaban Khatua & Jagabandhu Khatua, who had been arraigned as Defendant Nos.1, 2, 5 & 6 in the suit, carried the Appeal under Sec. 96 of the Code. The Appeal has been dismissed. Hence, the present Second Appeal is at the instance of these Appellants, who have suffered from the judgments and preliminary decrees passed by both the Trial Court as well as the First Appellate Court.

(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:- One Gopi Khatua was the common ancestor of the parties. He had two sons, namely, Sudhir Khatua & Dhadi Khatua. Sudhir died leaving behind his two sons, i.e., Dinabandhu Khatua & Krupa Khatua. Dinabandhu died leaving behind his six sons, namely, Narayan, Karuni, Mohani, Madan, Siba & Magu. Prahallad (Defendant No.1) and Bulu @ Balakrushna are the two sons of Narayan. Karuni adopted Balakrushna is the adopted son of Karuni. Mohani adopted Murali (Plaintiff). It is stated that Madan died leaving behind his son, namely, Bholi, who died issueless. Accordingly, the branch of Bholi became extinct. Siba died leaving behind Golekha Khatua (Defendant No.3). Magu died leaving behind his two sons, i.e., Tahali (Defendant No.4) and Murali. Murali went on adoption to Mohani as his adopted son. Tahali (Defendant No.4) thus remained as the only successor of Magu. The second son of Sudhir, namely, Kurpa was survived by his sons, namely, Bhagab (Defendant No.5) and Jagabandhu (Defendant No.6). Dhadi Khatua died leaving behind his three sons, i.e., Gani, Binod and Dhani. Defendant Nos.7, 8, 9 & 10 are the four sons of Gani. The second son of Dhadi, i.e., Binod died leaving behind his three sons, i.e., Radhu, Bandhu and Jadu. Radhu was survived by his son Musei (Defendant No.11) and Bandhu was survived by his two sons, namely, Sarat (Defendant No.12) and Bharat (Defendant No.13). Jadu died leaving behind his only son Paina (Defendant No.14). Dhani died leaving behind his son Nobei whose branch is extinct. It is stated by the Plaintiff that the suit properties are the ancestral properties of the parties in which two branches, i.e., the branch of Sudhir and Dhadi had 1/2 share each. Accordingly, it is stated that Dinabandhu and Kurpa, being the successors of the branch of Sudhir, had 1/4th share each; three sons of Dhadi, namely, Gani, Binod & Dhani, being the successors of Dhadi have 1/6th share each over Schedule-B land. The properties in Schedule- C are stated to have been purchased by six sons of Dinabandhu out of their own income and accordingly, those six sons of Dinabandhu possessed the same jointly in which other Defendants, i.e., the sons of Dinabandhu had no interest or possession. As the branch of one son of Dinabandhu, i.e., branch of Madan has been extinct, the other persons of the branch of five sons of Dinabandhu after the extinction of the branch of Madan, the Plaintiff and Defendant Nos.1 to 4 had 1/5th share each over Schedule-C properties and the final consolidation record of right in respect of Schedule-C properties has been prepared in the name of the Plaintiff and Defendant Nos.1 to 4 jointly. It is further stated in the Sabik Settlement of the year 1931, Schedule-B properties covered under C.S. Khata No.78 stood recorded jointly in the names of all the branches. After the death of Nobei Khatua, his widow, i.e., Biki Khatua married to Sindhu Khatua and transferred all the properties succeeded by her from Dhani Khatua in favour of Sindhu Khatua and that in the Consolidation Operation on the basis of sale made by her in favour of Sindhu Khatua, separate record of right in respect of Ac.1.69 decimals of land has been prepared in the name of Sindhu Khatua under separate record of right in respect of Ac.1.69 decimals. The name of Sindhu Khatua is stated to have been wrongly recorded in the record with others in respect of Schedule-B properties. Accordingly, it is stated that Dinabandhu and Kurpa had 1/4th share over Scheule-B property. On Dinabadhu's death, his six sons, namely, Narayana, Karuni, Mohani, Madan, Siba & Magu are entitled to 1/6th share each over Schedule-B property and as the son of Dinabandhu, i.e., Madan died issueless, the Plaintiff and Defendant Nos.1 to 4 have 1/20 th share each over Schedule-B property and they have 1/5th share each over Schedule-C properties. The properties under Schedule- B & C have not been partitioned.