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2018 DIGILAW 48 (ORI)

Kasinath Chandra Behera v. Narayan Behera

2018-01-09

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. This is a plaintiff’s appeal against reversing judgment. 2. The plaintiff-appellant instituted the suit for eviction of the defendants from the suit house. The case of the plaintiff is that he is the adopted son of late Arjuna Chandra Behera. The suit house is their joint family house. During the life time of his father, he filed O.S. No. 265 of 1972-I for partition in the court of the Sub-ordinate Judge, Puri. In the said suit, Narayan Behera-defendant no.1 was a party. His stand was that he was the adopted son of Arjuna. During pendency of the suit, the suit property was divided between them in equal shares. Accordingly, they filed a petition for compromise. After death of his father, the suit was only contested by Narayan. During pendency of suit, his father executed a Will bequeathing his half share in favour of the plaintiff. He instituted O.S. No. 50 of 1974-II in the court of the learned Sub-Judge, Puri for grant of letter of administration. Defendants lodged caveat. Letter of administration had been granted to him. Defendants filed First Appeal No. 174 of 1975 before this Court, which was dismissed. Defendants are in unauthorised occupation of the rooms of the house. All persuasions made by the plaintiff for eviction ended in fiasco. 3. The defendants entered contest and filed a joint written statement denying the assertions made in the plaint. The case of the defendants was that suit is barred by res judicata. Plaintiff is not the adopted son of Arjuna. Defendant no.2 is the adopted son of Arjuna. O.S. No. 265 of 1972-I filed by the plaintiff for partition was dismissed on contest. They are in possession of the suit house. Defendant no.3 was set ex parte. 4. On the inter se pleadings of the parties, the learned trial court struck nine issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that plaintiff is the adopted son of late Arjuna Chnadra Behera. He had got half of the suit house in family partition. The plaintiff also got other half by virtue of a Will, which has been probated in O.S. No. 50 of 1974, and was confirmed in First Appeal No. 174 of 1975. The suit is not hit under Sec.11 CPC. Held so, it decreed the suit. He had got half of the suit house in family partition. The plaintiff also got other half by virtue of a Will, which has been probated in O.S. No. 50 of 1974, and was confirmed in First Appeal No. 174 of 1975. The suit is not hit under Sec.11 CPC. Held so, it decreed the suit. Felt aggrieved, defendant no.2 filed an appeal in the court of the learned District Judge, Puri, which was subsequently transferred to the court of the learned IInd Additional District Judge, Puri and renumbered as T.A. No. 16/81 of 1985/83. During pendency of the appeal, the decisions in O.S. No. 50 of 1974 and First Appeal No. 174 of 1975 were set aside by a Division Bench of this Court in A.H.O. No. 03 of 1979. It was held that the Will was not a genuine one. The matter went to apex Court in S.L.P. No. 14661/86, which was dismissed on 03.07.1996. Taking a cue from the judgment of this Court in A.H.O. No. 03 of 1979, the learned appellate court allowed the appeal. 5. The Second Appeal was admitted on 14.02.1997 on the following substantial question of law:- “Whether in view of the alleged compromise deed, dismissal of the suit filed by the present appellant is legal or not ?” 6. Heard Mr. Budhiram Dash, learned Advocate on behalf of Mr. N.C. Pati, learned Advocate for the appellant. None appears for the respondents. 7. Mr. Dash, learned counsel for the appellant submits that the plaintiff is the adopted son of Arjuna. He has right, title and interest over the suit property. The suit for eviction is maintainable. He further submits that the finding of the learned appellate court that there being no issue relating to adoption is not sustainable as the learned trial court came to hold that the plaintiff is the adopted son of Arjuna. On the pleadings and evidence adduced by both the parties. 8. The assertions of the plaintiff were that the suit property was bequeathed by one Arjuna Chandra Behera, father of defendant no.1. The plaintiff instituted O.S. No. 50 of 1974-II for grant of letter of administration. The same was allowed. Assailing the judgment, defendant nos.1 and 2 filed First Appeal No. 174 of 1975 before this Court, which was dismissed. Thereafter, they filed A.H.O. No. 03 of 1979. The plaintiff instituted O.S. No. 50 of 1974-II for grant of letter of administration. The same was allowed. Assailing the judgment, defendant nos.1 and 2 filed First Appeal No. 174 of 1975 before this Court, which was dismissed. Thereafter, they filed A.H.O. No. 03 of 1979. A Division Bench of this Court allowed the appeal and came to hold that Will was not genuine. The plaintiff filed S.L.P. No. 14661/86 before the Hon’ble apex Court, which was eventually dismissed on 03.07.1996. In view of the same, the plaintiff has no evict able right. The substantial question of law is answered accordingly. 9. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.