CHAMARA JHANKAR Vs. BANAMALI JHANKAR

JUDGEMENT

(1.) Challenging, inter alia, the order dated 30.11.2009 passed by the learned Civil Judge (Sr. Divn.), Boudh in C.S. No.30/05, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, learned trial court allowed the application of the plaintiff filed under Order 18 Rule 1 C.P.C. and directed the defendants to begin first.

(2.) The opposite party no.1 as plaintiff instituted the suit impleading the petitioners as well as opposite party nos.2 to 14 as defendants. The case of the plaintiff is that Dhoba Jhankar, common ancestor of the parties, was the recorded owner of an area of 5005 sq. ft. of homestead land appertaining to Sabik Khata No.289 in Mouza -Boudh Town and an area of Ac.4.51 dec. agricultural land vide Sabik Khata No.211 of Mouza -Boudhgarh. Dhoba died in or around the year 1960 and his wife Padma died in the year 1980. After death of Dhoba, his three sons were in separate mess and possession of suit schedule properties by mutual family arrangement. There was no partition of the suit schedule properties by metes and bounds. The defendant no.15 alienated an area of Ac.1.45 dec. of agricultural land to the outsiders. It is further stated that despite of the fact that the properties have not been partitioned by metes and bounds, the co -sharers have raised construction over the suit schedule land by demolishing old structures and consequently the plaintiff has suffered damage to the tune of Rs.20,000/ - due to collapse of his house. With this factual scenario, the plaintiff instituted the suit for declaration of right, title and interest over the suit schedule land, for partition, for permanent injunction and for damages of Rs.20,000/ -.

(3.) Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that parties are living in separate mess and properties and have constructed their separate residential house since long.