KANAKA SAHOO Vs. LILABATI SAHOO AND ANOTHER

JUDGEMENT

(1.) This appeal has been directed against the judgment passed by the learned Addl. District Judge, Khurda in RFA Nos. 24 of 2006 and 4 of 2007 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Khurda in T.S. No. 25 of 2001. The appellant was the plaintiff in the trial court and also the appellant in RFA No.24 of 2006. The original defendant no.1 having died during the suit, her daughter has come to be substituted in her place and she with her father defendant no. 2 contested the suit by filing written statement as also by filing a counter claim. The plaintiff's suit has been decreed in part and the counter claim of defendant no.2 has been allowed. So when the plaintiff being refused with all the reliefs that she prayed for had filed an appeal under Section 96 of the Code of Civil Procedure, the defendant no. 2 being aggrieved by the part decree standing in favour of the plaintiff had also filed the appeal which has been dismissed and as against that he has not preferred any second appeal as submitted. So now in this appeal, the appellant prays for decreeing her suit in entirety granting all the reliefs claimed therein and for dismissal of the counter claim by setting aside the decree passed therein in favour of the defendant no.2.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) The plaintiff's case is that the suit land originally belonged to Hata Sahoo who is the father of the plaintiff and original defendant no. 1. It is stated that Hata died in the year 1994 leaving the plaintiff and defendant no. 1 as his legal heirs and successors. During the lifetime of Hata, there had arisen dissention between the plaintiff and defendant no. 1 and that had led Hata to make an amicable settlement by way of separation of the homestead plots of land which he was having as by then both the daughters of Hata having been married were residing in that village Gurujanga. It is stated that the land under Plot No. 986 corresponding to khata No. 448 measuring Ac.0.070 decimals was allotted to the plaintiff and similarly, the land under Plot No. 987 under Khata No. 249 measuring Ac.0.067 decimals was allotted to defendant no.1. Those two plots of land were having separate holding Nos. 37 and 38. It is further stated that as per said amicable separation, the plaintiff and defendant no. 1 with their family resided in the houses over those lands. It is alleged that after the death of Hata, the defendants with an intention to grab the entire land of Hata has created some documents in the year 1994 and on the basis of that applied before the Tahasildar for mutation of the land covered under the documents. The prayer for mutation was of course rejected. However, being armed with such documents since defendant no. 2 went on creating disturbance in possession of the land by the plaintiff, ultimately the suit for partition of the properties of Hata in two equal halves had to be filed.