Decided on July 21,1978

Nimai Maharana And Anr. Appellant
Basudev Maharana And Ors. Respondents


P.K. Mohanty, J. - (1.) THE second appeal is by the plain tiffs against a decree of affirmance.
(2.) ACCORDING to the genealogy given in the plaint, one Keshaba Maharana had two sons, namely, Madhaba and Madhu. Plaintiff No. 1 Nimai is the son and Plaintiff No. ;2 Laxmi is the married daughter of Madhaba. Madhu had two sons, namely, Arta and Dinabandhu. Defendants 1 and 2 are the sons of Arta while Defendants 3 to 5 are the sons of Dinabandhu. The suit land measuring 0.080 acre appertains to two khatas, namely, 342 and 323. Khata No. 342 comprises of plot No. 1644 with an area of 0.10 acre and plot No. 1644/2607 with an area of Order 20 acre. Khata No. 323 comprises of plot No. 1643 with an area of Order 50 acre. The suit land is a homestead land situated at Hundhebenta Sahi in the town of Puri. The case for the Plaintiffs was that Madhaba had orally gifted half interest out of his eight annas share in the suit land in favour of Plaintiff No. 2 at the time of her marriage and since then she has been residing with her husband in the house standing on the suit land along with Plaintiff No. 1 and the Defendants. The bahel interest in the suit property having vested in the State Government both the parties applied for settlement of the suit land in their favour and rent schedules were issued in their names jointly. The Plaintiffs claimed partition of eight annas share of their father in the suit land. In the alternative it was contended that even if it is held that the Plaintiff No. 2 is not entitled to any share out of the suit property, the eight annas share of Madhaba might be partitioned and allotted in favour of Plaintiff No. 1 alone.
(3.) THE suit proceed ex parte against the Defendants 1 and 2. Defendants 3 to 5 filed a joint written statement contending that the Plaintiff No. 1 is not the son of Madhaba, but he is the son of Madhu and that since his childhood he has been given in adoption to one Kulamani Maharana of village Inchal and hence he has no locus standi to claim partition of the suit land. The allegation that Madhaba had orally gifted half interest out of his eight annas share in the suit land was denied. It was also contended that Madhaba died in 1949 while living in a state of jointness with Madhu leaving behind him his widow Rupei and while the said Rupei was living jointly with the Defendants she died in the year 1955 and after her death the entire suit land devolved on the Defendants by survivorship and they are the owners in exclusive possession of the same.;

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