NABA @ NABAKISHORE BEHERA Vs. HARIHAR BEHERA

JUDGEMENT

(1.) THIS appeal by defendants Nos. 1, 2, and 3 (appellants) and cross -appeal by defendant No.5 (Respondent No.2) are directed against the judgment and decree passed by the learned Subordinate Judge, Jajpur in Title Suit No. 14 of 1976 filed by Respondent No.1 for partition of the suit properties.

(2.) RESPONDENT No.1 as plaintiff filed the above noted suit pleading inter alia that Kurup Behera had two sons, namely; Nanda and Giridhari. Rama and Panchu were the sons of Nanda. Nuri and Netra were the sons of Rama and Kangali and Khetra were the sons of Panchu. Naba (defendant No.1) and Kusa (defendant No.2) are the sons of Nuri. Siba (defendant No.3) is the son of Netra. Kangali died issueless. Khetra also died issuless leaving behind his widow Musi (defendant No.4). In the other branch Laxman was the son of Giridhari. Jogi and Ekadosi were the sons of Laxman. Hari (plaintiff) is the son of Jogi. Ekadosi died issuless.

(3.) SIX witnesses were examined and documents Exts. 1 to 5 were produced on behalf of the plaintiff. Similarly, 5 witnesses were examined on behalf of the defendants and documents produced by them were marked as Exts. A to E. On consideration of these evidences learned trial Judge came to hold that Jogi and Edakosi were joint till their death, defendant No.5 is not the daughter of Ekadosi and is not entitled to inherit the property of Ekadosi Kangali and Musi gifted away their shares in Schedules A and B properties in favour of the plaintiff vide gift deed Ext.2, the plaintiff became entitled to 12 annas shares in Schedule A and 8 annas share in Schedule B properties, the alleged sale of 17 decimals of land by defendant No.5 in favour of defendants 1 to 3 is not genuine and does not convey any title; that the suit is not barred under Order 9 Rule 9 of the C.P.C. Consequently, he decreed the suit preliminarily on contest against defendants 1, 2, 3, and 5 and ex parte against defendant No.4 and granted 12 annas share in Schedule A property and 8 annas shares in Schedule B properties to the plaintiff and the rest part of the properties to defendants 1, 2, and 3. The claim for compensation on account of the alleged removal of trees, bamboos and fish was, however, rejected. The present appeal and cross -appeal are against the said judgment and decree.