BHIKARI PRADHAN AND OTHERS Vs. JAGYASINI PRADHAN

JUDGEMENT

(1.) Defendants are the appellants against a reversing judgment.

(2.) Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiff-respondent instituted the suit for declaration that the defendant no.3 is not the adopted son of defendant nos.1 and Defendant nos.1, 2, 4 and 5 filed written statement denying the assertions made in the plaint. The specific case of the defendant nos.1, 2, 4 and 5 is that defendant no.3 is the adopted son of defendant nos.1 and Defendant no.3 supported the case of other defendants. While the matter stood thus, the defendants filed an application under Order 14 Rule 2 C.P.C. to decide the maintainability of the suit as preliminary issue. According to the defendants, the suit is hit under Sec.34 of the Specific Relief Act and as such not maintainable. The plaintiff filed objection to the same. Learned trial court dismissed the suit with a finding that the suit is not maintainable. Feeling aggrieved, the plaintiff filed T.A. No.3 of 1984 before the learned Subordinate Judge, Bargarh. Learned appellate court came to hold that the suit is maintainable and remitted the matter back to the learned trial court for de novo hearing. Hence the second appeal.

(3.) The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the appeal memo with reference to the decisions reported in AIR 1967 SC 436, AIR 1959 SC 577 and AIR 1975 SC 1810. The same are: