DANIEL DAS Vs. SATYAJIT DAS

JUDGEMENT

(1.) Plaintiffs are in appeal against the order of the learned Civil Judge (Senior Division), First Court, Cuttack, passed in Misc. Case No. 293 of 1996 whereby they have been restrained from interfering with the possession of defendant No. 1 over the suit land and the house standing thereon.

(2.) Plaintiffs' suit is one for partition. The parties are Christian by religion and their right to succession is governed by the Indian Succession Act. Admittedly the suit land belonged to one late Jones Das who in his life time had divided the same amongst his sons and daughters. Plaintiffs 1 and 2 are the sons and 3 to 7 are sons' sons of late Jones Das. Purna Kumari Das one of the daughters of the recorded owner, had married to defendant No. 1. She died issueless on 4-6-1990. The suit land appertaining to Hal Khata No. 5, plot No. 254 of area Ac. O.81 dec. had fallen to her share which she possessed till her death. It is the plaintiff's case that according to the Indian Succession Act, upon the death of Purna Kumari Das, they along with defendants 2 to 5 are entitled to half share and defendant No. 1 being the husband of Purna Kumari is entitled to half share in the suit land, Claiming to be the sole successor of the property left by Purna Kumari Das, defendant No. 1 filed a petition under section 236 of the Orissa Tenancy Act which was registered as O.T. Case No. 69 of 1991 before the Tahsildar (S), Cuttack, and got the record-of-rights corrected in respect of the suit land in his favour. The plaintiffs challenged the aforesaid order of the Revenue Authority in higher forum and were unsuccessful. Thereupon they approached the civil court seeking partition of the suit land. It is alleged that after the death of Purna Kumari, the plaintiffs are in possession of southern part and the defendant No. 1 is in possession of the northern part of the suit land.

(3.) The case of the defendant No, 1 is that upon the death of Purna Kumari, the recorded owner of the suit land, he being her husband has succeeded to the same in entirety. The plaintiffs are not heirs of the recorded owner and therefore are not entitled to any share in it. Being sole owner of the suit land, he has been possessing the same on his own right and has been paying rent and municipal taxes and electric bills for the house standing thereon. He has denied the plaintiffs' assertion that they are in possession of the southern part of the suit land.