CHITTARANJAN SAHOO Vs. NIRANJAN SAHOO AND OTHERS

JUDGEMENT

(1.) The Defendant No.1 as appellant has filed this appeal assailing the judgment and decree dated 15.11.2006 and 29.11.2006 respectively passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in C.S.(I) No.322 of 2004.

(2.) Case of the plaintiff (respondent No.1 herein) in brief is that one Abhina Chandra Sahoo died leaving behind his widow, three sons and four daughters (genealogy given below).

(3.) Defendant Nos.5 and 7 were set ex parte vide order dated 25.02.2005. Defendant No.1-appellant filed his written statement challenging the maintainability of the suit. He contended that there was an amicable partition in the family in the year 1977 during the life time of Abhina. As per the said partition, defendant No.3 (widow of Abhina) was only entitled to right of residence till her death. Defendant No.1 separated himself from the joint family and was residing over 'B' schedule property by constructing a house thereon. Defendant No.1, however, denied that daughters of Abhina, i.e., defendants 4 to 7, had relinquished their share in the suit property. He also denied that the plaintiff had ever approached him for partition. As there was prior partition in the year 1977, the plaintiff had no cause of action to file the suit. Hence, he prayed for dismissal of the same.