BETIKHAI ROUT Vs. DASARATHI PATEL AND OTHERS

JUDGEMENT

(1.) These three Misc. cases are taken together for disposal as all these petitions relate to substitution of respondent no.7. So they are being disposed of by this common order.

(2.) Before going to discuss on the petitions, the story of the plaintiffs needs little elaboration. One Nabaghana Patel being the common ancestor had three sons namely, Iswara, Uchhab and Hari. Rebati is his wife. Nabaghana and Rebati died leaving behind his sons Iswara, Uchhaba and Hari. These brothers and their wives are also dead. Plaintiff no.1 is the son of Iswara. Plaintiff nos.2 to 6 are the sons of Uchhaba. Defendant no.1 is the daughter of Hari. There was no partition of the ancestral suit property between Iswara, Uchhaba and Hari, and during jointness Hari allegedly died on 6.9.1947 leaving behind his widow Bedamati and daughter Betikhai who is appellant before this Court. Bedamati got married to one Ajin Patel. At that time defendant no.1 was minor being brought up by Iswara and Uchhaba who got her married to Jadumani Rout. It is the case of the plaintiffs that father of defendant no.1 died in jointness before 1956. She has no share in the ancestral suit property, but her name was recorded in respect of the suit property in the settlement R.O.R., on their application her name was deleted by the Additional Tahasildar. Against such order, defendant no.1 filed appeal before the Sub-Collector, who allowed the appeal. The plaintiffs filed suit for declaration of right, title and interest of the plaintiffs and defendant nos.2 to 6 and further declaration that defendant no.1 has no right, title and interest thereon. That suit was dismissed against defendant no.1.

(3.) The appeal was filed before the appellate Court. Learned District Judge, after hearing both parties, set aside the judgment and decree passed by the learned trial court and as such, the right, title and interest of the plaintiffs and defendants 2 to 6 were declared and defendant no.1 has no right, title and interest thereon. Against such appellate order, defendant no.1 filed the present Second Appeal on 11.4.2011 with a petition for condonation of delay under section 5 of the Limitation Act.