SUMA BEWA Vs. KUNJA BIHARI NAYAK

JUDGEMENT

(1.) The defendants are in appeal in a suit for partition filed by the plaintiffs-respondents.

(2.) Plaintiff No. 1 Kunja Bihari Nayak and deceased-respondent Judhistir Nayak are brothers being the sons of late Radhu Nayak. The plaintiffs' case is that plaintiff No. 1 and Judhistir, the deceased-defendant were two brothers and the suit properties are their ancestral joint family properties. They have been recorded as such in the present settlement record of rights with a note of possession in favour of plaintiff No. 2, the daughter of plaintiff No. 1 on the basis of a sale deed/gift deed executed by plaintiff No. 1 in her favour. The present defendants are the legal heirs and have been substituted in place of deceased-defendant Judhistir, on his death. The plaintiffs filed the suit for partition of his 8 annas share. The defendant No. 1 having disputed prior amicable partition and consequential possession and having refused the demand of partition, the suit. The deceased-defendant Judhistir and after him the defendants contested the suit inter alia on the ground that defendant No. 3 who is the natural born son of deceased-defendant No. 1 is the adopted son of plaintiff No. 1 and that suit plot No. 1066 measuring Ac. O.09 decimals exclusively belonged to the deceased-defendant No. 1 and not liable for partition. The other suit properties belonged to plaintiff No. 1, defendant No. 2 and other defendants inasmuch as the plaintiff No. 2 has no right, title and interest over the suit properties and that the deceased-defendant Judhistir had incurred a huge loan to meet the marriage expenses of plaintiff No. 2, which was repaid by him and his son Balaram. The plaintiffs taking advantage of the fact that there was no deed or any other document evidencing adoption of defendant No. 3, are trying to deprive him of his ligitimate share.

(3.) The learned Additional Subordinate Judge, Cuttack who tried the suit, framed six issues as under :1. Whether the suit is maintainable ?2.Whether the suit properties are to be partitioned giving half share to the plaintiffs ?3.Whether the suit has been properly valued 4.Whether there was an amicable partition of the suit property between the parties concerned ?5.To what relief, if any, the plaintiffs are entitled to ?6.Whether Sribaschha Nayak (deft. No. 3) is the adopted son of plaintiff No. 1?Issue Nos. 2 and 6 were tried together and the trial Judge held that defendant No. 3 is not the adopted son of plaintiff No. 1 and that plaintiff No.1 and defendants are entitled to half share each in the suit properties. The other issues are answered in the affirmative.