KOUTIKI SAHU Vs. BASANT KUMAR NEPAK

JUDGEMENT

(1.) This petition challenges the order dated 19.1.2009 passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.92 of 2008. By the said order, learned trial court rejected the application of the defendants under Order 7 Rule 10 and 11 CPC.

(2.) Opposite party as plaintiff instituted C.S. No.92 of 2008 in the court of the learned Civil Judge (Junior Division), Berhampur with the following reliefs:

(3.) The case of the plaintiff is that the suit schedule property is the joint family property. In the partition, the same was allotted in favour of Narayan Nepak, father of the plaintiff and defendant no.2. Narayan died leaving behind the plaintiff, defendant no.2 and nine other legal heirs and successors. Narayan instituted T.S. No.51 of 1992 in the court of learned Sub -Judge, Berhampur for partition of the suit property. He died in the year 1995 and the suit was abated. Thereafter, Pratima Kumari Devi, sister of the plaintiff instituted T.S. No.60 of 1996 in the same court for partition of the suit schedule property. The suit schedule property is a part of and the subject - matter of dispute in T.S. No.60 of 1996. The settlement authority recorded the land in favour of Narayan. During pendency of the suit, defendant no.2, one of the co -parcener along with his son alienated the land to defendant no.1 by means of registered sale deed no.4659 dated 12.8.2008. The alleged sale deed contains the recital that the suit schedule property fell to the share of the defendant no.2 in oral partition. But then, there is no partition between the parties. The sale deed is illegal and inoperative. With this factual scenario, the suit was filed seeking the reliefs mentioned supra.