BHAGYARATHI DAS Vs. AGADHU CHARAN DAS

JUDGEMENT

(1.) THE plaintiffs are the appellants against a confirming judgment arising out of a suit for partition instituted against the respondent -defendant. Appellant No. 2 who was the plaintiff No 2 in the suit is the mother of appellant No. 1 (plaintiff No. 1). The plaintiffs' case is that the plaintiff No. 2 is the married wife of the defendant and out of their wedlock the appellant No. 1 was born. The suit properties are the ancestral properties of the parties. The defendant, for two years preceding the suit, started neglecting the plaintiffs and squandering the family properties for inconsequential amounts and on protest of the plaintiffs, the defendant threatened to drive them out. Hence the plaintiffs brought the suit for partition.

(2.) THE defendant -respondent in his written statement completely denied any relationship with the plaintiffs and contended that the appellant No. 2 is not his wife and that on the other hand one Sushila is his wife. It was his case that, appellant No. 2 is the kept of his younger brother Sashibhusan and that the appellant No. 1 was born out of their illicit relationship. It is the further case of respondent that the aforesaid Sashibhusan has set up the appellants to foist the case against him on false allegations.

(3.) IN appeal the learned Additional District Judge, Puri, at one stage oberved as follows : 'On the pleadings of the parties, the main issues should have been if plaintiff No. 2 Sadhabani was the wife and plaintiff No. 1, the son of the defendant. No such issue has been framed in the Court below. The learned Sub -Judge, however, proceeded to decide the above question of relationship under the aforesaid two issues. At the opening of the appeal, I thought, it was a fit case for remand with a direction to the learned Sub -Judge to frame a pointed issue, give further opportunity to both parties to lead further evidence if they so desired and to decide the case afresh. The learned lawyer for the respondent however contended that the issues framed covered the question of relationship and so there was no necessity of remand. The learned lawyer for the appellants did not seriously press for remand. On perusal of the appeal memo, I find that no ground has been taken in the matter of framing of issue and there is no hint for remand. So, I reviewed my thought and decided to dispose of the appeal on merits.'