NAYANA SAHOO AND OTHERS Vs. PARAMANANDA SAHOO (DEAD)

JUDGEMENT

(1.) This first numbered appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Cuttack in R.F.A. No. 04 of 2003 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Cuttack in T.S. No. 89 of 2002. By the said judgment, the learned Addl. District Judge has confirmed the preliminary decree passed by the trial court in the suit filed by the respondent No. 1 as the plaintiff. Therefore, now the defendant No. 8 to 13 as the appellant have filed the said appeal. The second numbered appeal has been filed challenging the final decree passed in the said suit which was refused to be interfered with by the lower appellate court. Learned counsel for the parties at the outset submit that the decision in the first numbered appeal would practically hold the field and decide the fate of the second numbered appeal where decision most likely to be just consequential.

(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 court below.

(3.) The plaintiff's case is that the suit property is the joint family properties of the parties which had been partitioned in metes and bounds. So, he had approached the Settlement Authority for such partition and separate recording of his 50 % share in his name by filing a revision bearing R.P. No. 3076 of 1992 before the Commissioner Land Records and Settlement made invoking the jurisdiction under section 15 (b) of the Odisha Survey and Settlement Act which has culminated by order dated 17.02.1993 with a direction for share noting of 50 per cent of the plaintiff. For better appreciation, the genealogy showing inter se relationship between the parties is given here under. The suit is contested by defendant No. 8 to 13 who have taken the specific plea that in an amicable partition between the predecessors of both branches i.e., Hari, Niladri, 10 annas of share was given to Niladri, where as 6 annas share was allotted to Hari, the branch of the plaintiff. For this disparity in share allotment, they have given an explanation that it was made upon a reasonable consideration that as against members of the branch of Hari, the members of the branch of Niladri were many. It is pertinent to state at this place that although it has been stated in any corner of the plaint by the plaintiff that he had filed a suit for partition of joint family properties against his sons, nonetheless the defendants have specifically averred it saying that the plaintiff and his son had admitted about the previous partition as the defendants now state. Thus they defend that the suit for partition is maintainable and it is barred by principle of resjudicata/estoppel.