DRAUPADI PATEL Vs. LOKNATH PANDA

JUDGEMENT

(1.) The unsuccessful plaintiff is in appeal against the judgment and decree of the learned Subordinate Judge, Bargarh (presently Civil Judge, Senior Division) passed in Title Suit No. 108 of 1973. In the appeal respondent Nos. 1 and 3 having died, their legal representatives have been substituted. So also by orders dated 3.1.1979 and 3.8.1994 respondents 3 and 4 have been expunged. Therefore, for the sake of convenience the parties are referred to in the manner as mentioned in the cause-title of the suit. The suit was one for partition simplicitor in which the plaintiff sought for partition of her share in the suit properties left by Sita, her maternal grand-mother. The following genealogy will show the relationship of the parties: <IMG>JUDGEMENT_86_CCC4_1998Image1.jpg</IMG>

(2.) Plaintiff's case, in brief, is that the common ancestor Chakra Pandey died leaving three sons, namely Chandia, Manu and Kadab. Chandia's widow is Barian. Manu died leaving two sons. Loknath (D-l) and Garjan (D-2). Jadab is survived by his widow Sita and two daughters, Nura and Koti. Sita died in or about 1957. Her daughter Nura died in 1972 leaving behind her husband Uday Patel, defendant No. 5 and daughter Draupadi, plaintiff. The daughter Koti also died in the same year leaving behind her husband Labar, defendant No. 4. Chandia, Manu and Jadab were separate in mass and property and were cultivating the suit property separately according to their share without there being partition by metes and bounds. Upon death of Jadab the property which was in his separate possession/devolved upon his wife Sita and she possessed the same all along till her death. Accordingly in the Hamid settlement the suit property stood recorded jointly in the names of Chandia, Manu and Sita. Upon Sita's death, the property which was in her separate possession came to be devolved upon her two daughters Nura and Koti and they possessed the same jointly. While being in such possession they died whereafter the. said property devolved upon the plaintiff, daughter of Nura. There being no partition by metes and bounds. plaintiff filed the suit claiming one-third share in the suit property.

(3.) Defendant 1 to 3 filed joint written statement which is cryptic in nature. They traversed and denied the plaintiff's assertion of separation among Chandia, Manu and Jadab. They aiso disputed plaintiff's claim of separate possession of any portion of the suit property. Besides, they challenged the correctness of the genealogy as shown in the plaintiff alleging, inter a/fa, that though Garjan was the natural born son of Manu, but he was adopted by Chandia and this fact was not specifically pleaded in the plaint.