HAREKRUSHNA DASH Vs. SADASIVA DASH

JUDGEMENT

(1.) In the present first appeal under section 96 of the Code of Civil Procedure, the judgment and preliminary decree passed by the learned civil Judge (Sr. Divn.), Banki in Title Suit No. 5 of 1996 have been assailed. The respondent as the plaintiff has filed the above noted suit for partition praying for allotment of half share over the plaint 'B' schedule properties from out of the same in his favour and the rest half in favour of the original appellant (defendant). The trial Court has preliminarily decreed suit entitling the respondent (plaintiff) to 4/9th share over the said schedule properties. The challenge to the judgment and preliminary decree as originally made by the sole defendant. He having died during pendency of the appeal, now the appeal is being pursued by his legal representatives those favour the right to sue survives.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.

(3.) Plaintiffs' case is that one Uchhaba Dash had three sons namely, Raghunath, Lokanath and Radhanath; all of whom are dead. It is stated that those three sons of Uchhaba were separated both in mess and estate. It is next stated that despite the fact of separation amongst three sons of Uchhaba both in mess and estate, the record of right in respect of the 'B' schedule land has been published in the last settlement with joint recording in the name of Lokanath. Buli Bewa, Sadasiva (plaintiff) and Harekrushna (defendant). The plaintiff's case is that the suit property is the ancestral property in his hand as also in the hand of the defendant being the separately possessed properties of Lokanath as allotted in the separation with his two brothers during their lifetime.