IN THE COURT OF SENIOR CIVIL JUDGE,

R.UDAYAGIRI, DISTRICT: GAJAPATI

Present:
Sri B.B. Ray, LL.B.,
Senior Civil Judge,
R.Udayagiri.

Dated this the 24th day of November, 2021

C.S. Case No.50/2009

R.N. No:18/2020

1. Smt. Marsa Naik, aged about 70 years,

W/o: Late Pedro Nayak, (Dead & LRs are already on record)
2. Prasanna Kumar Nayak, aged about 50 years,
S/o:Late Pedro Nayak,
3. Promod Kumar Nayak, aged about 48 years,
S/o:Late Pedro Nayak,
4. Bipin Kumar Nayak, aged about 46 years,
S/o:Late Pedro Nayak,
5. Bibhuti Kumar Nayak, aged about 44 years,
S/o:Late Pedro Nayak,
6. Jyotiraj Nayak, aged about 42 years,
S/o:Late Pedro Nayak,
Sl. No.1 to Sl. No.6 are Pano-Christian, resident
of Christian Street, Vill/Po/Ps-Mohana,
Dist:Gajapati.
7. Subhasini Nayak, aged about 40 years,
W/o:Jugal Kishore Nayak,
D/o:Late Pedro Nayak, Pano-Christian,
 // 2 // Judgment in C.S.50/2009

Vill:Raising, Po-Karchabadi, Ps:Mohana,

Dist:Gajapati.
. . . Plaintiffs.
-Versus-
1. Debodutta Singh, aged about 61 years,
S/o-Late Leonard Nayak, Retd. Teacher,
At/Po/Ps:Christian Street Mohana,
Dist:Gajapati.
2. Mariam Nayak, aged about 57 years,
S/o:Late Leonard Nayak,
At/Po/Ps:Christian Street Mohana,
Dist:Gajapati.
3. Bikramaditya Nayak, aged about 55 years,
S/o:Late Leonard Nayak,
At/Po/Ps:Christian Street Mohana,
Dist:Gajapati.
4. Jagyadutta Nayak @ Samal, aged about 52
years, S/o:Late Leonard Nayak, Carpenter,
At/Po/Ps:Christian Street Mohana,
Dist:Gajapati.
5. Paulin Nayak, aged about 59 years,
W/o:Sribachha Nayak,
D/o:Late Leonard Nayak, Housewife,
At:Christian Street, Chandiput,
Ps:Mohana, Dist:Gajapati.
 // 3 // Judgment in C.S.50/2009

6. Juakin Sobhasundar, aged about 50 years,

S/o:Not known, employee, Pano-christian,
Manager at SBI,
At/Po/Ps:R. Udayagiri, Dist:Gajapati.
7. Seila Sobhasundar, aged about 45 years,
W/o:Juakin Sobhasundar, Housewife,
C/o:Juakin Sobha Sundar, State Bank of India,
At/Po/Ps:R. Udayagiri, Dist:Gajapati.
8. Rabi Ratan, aged about 47 years,
S/o:Not known, employee, Pano-Christian,
Working with Nirman office,
At/Po/Ps:Mohana, Dist:Gajapati.
9. Ananta @ Antanasi Nayak, aged about 61
years, S/o:not known, Pano-Christian,
Vill:Paramaguda, Po:Nalaghat, Ps:Adava,
Dist:Gajapati.
10.Damburudhar Pradhan, aged about 55 years,
S/o:not known, Vill/Po/Ps:Mohana,
Dist:Gajapati.
11.Prabhas Kumar Pradhan, aged about 33 years,
S/o:Dmburudhar Pradhan,
Vill/Po/Ps:Mohana, Dist:Gajapati.
12.Simho Mali @ Laxmi Simho Mali, aged about
40 years, S/o:Late Silvestro Mali, Mason,
Pano-christian, At/Po/Ps:Christian Street
 // 4 // Judgment in C.S.50/2009

Mohana, Dist:Gajapati.
13. Saulo Louis Singh, aged about 70 years,
C/o-Bimala Singh, Bimola Girls High School,
At/Po/Ps- Mohana, Dist:Gajapati.
14. Bimala Singh, D/o:Saulo Louis Singh, aged
about 40 years, Bimilo Girls High School,
At/Po/Ps:Mohana, Dist:Gajapati.
... Defendants.

Counsel for the Plaintiff…Smt. Kamalini Patnaik &

Associates.
Counsel for the
Defendant No.1 … Sri B. Ch. Senapati,
Advocate, R. Udayagiri.
Counsel for the
Defendant No.2 to 14 ... Ex-parte

Date of argument:23.11.2021
Date of Judgment:24.11.2021

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//J U D G M E N T//

This is a suit for partition and for carving out

of the share of the plaintiffs in two equal parts and to
put the plaintiffs in half of such share out of the suit
 // 5 // Judgment in C.S.50/2009

land and cost along with other consequential reliefs.

2. The Germane Plaint averments of the Plaintiff

are recapitulated as follows:-
The suit ROR has been recorded in the name
of Alphounce Nayak, S/o:Choudhury Nayak appertains
to Khata No.13, corresponds to Plot no.677, 626 and
20 situates under Mouza Mohana. The plaintiff has
given genealogy which discloses the relationship
between the parties as hereunder.

PEDIGREE

Choudhury Nayak (dead)

=Sambari (dead)

Tena Nayak Alphounce Leonard Pedra

(dead) (dead) (dead) (dead)
= Rajamma = rebeka = Pelimi = Marsa
(dead) (dead) (dead) (Pltf. No.1)

Debodatta Paulin Marian Bikramaditya Jagyadutta

(Dfdt.1) (Dfdt.2) (Dfdt.3) (Dfdt.4) (Dfdt.5)

Prasanna Pramod Bipin Bibhuti Jyotiraj Subasini

 // 6 // Judgment in C.S.50/2009

(Pltf.2) (Pltf.3) (Pltf.4) (Pltf.5) (Pltf.6) (Pltf.7)

3. According to the pleading of the plaintiffs that

the parties to the suit are related with full blood
relation of successor Choudhury Nayak. The original
recorded owner Alphounce was serving in the Indian
Army and in recognition of his service, he was
provided/ allotted with the Suit scheduled property and
died intestate leaving no heirs to him. The plaintiffs
and the defendants are the sons and daughters of
Leonard and Pedara, the brothers of Alphounce. So,
after death of Alphounce the parties are entitled to
succeed the suit properties under the law of
inheritance. The plaintiffs have further pleaded that
after death of Alphounce, the Defendant no.1 claimed
himself to be the adopted son of Alphounce on the
basis of a fabricated adoption deed and alienated a part
of the suit properties in-favour of defendant no.6 to 14
through registered sale deeds. The matter was
challenged before the Senior Civil Judge,
Parlakhemundi vide T.S.13/1996 which came to be
disposed off in the year 1998 as dismissed. Being
aggrieved, the father of the plaintiffs had preferred
appeal before the Hob’ ble Addl. District Judge,
Gajapati at Paralakhemundi vide T.A. No.7/1999
 // 7 // Judgment in C.S.50/2009

which was heard and disposed off with a finding that

the Defendant no.1 is not the adopted son of Late
Alphounce and the operative part of the decree is
extracted below for ready reference.
“It is declared that the deed of adoption is not
binding on the plaintiff and it cannot override any
other statutory laws which govern the parties who are
successor interest of Late Alphounce”.

4. By virtue of order of the Hon’ ble Appellate

Court, the sale deed executed by Defendant no.1 in
favour of Defendant no.6 to 14 has become in
operative and not binding upon these plaintiffs. It is
the specific case of the plaintiffs that they being the
successor of Late Alphounce are entitled to half share
out of the properties left intestate by Late Alphounce
and the rest half of the share also to be devolved in
favour of the Defendants No.1 to 5. The plaintiffs
have demanded for partition of the suit land, to which
the defendants showed their indifferent attitude, for
which, the plaintiffs have been compelled to file the
present suit for partition stating the cause of action
arose as on dtd.01.06.2006, when the Hon’ ble
Appellate Court allowed the appeal and declared the
adoption deed executed in favour of defendant no.1 is
not binding upon the plaintiffs and that when
defendants refused to make partition of suit properties
 // 8 // Judgment in C.S.50/2009

by metes and bounds. Plaintiffs have also paid required

fixed court fee of Rs 300/- for the relief as prayed for.
Hence this suit.

5. Despite of personal service of summons

against defendant No. 2 to 14, they did not prefer to
attend the proceeding, therefore, they have been set
ex-parte by this court vide order dated on 12.11.2019
(Defendant No.13 & 14), on 15.02.2010 (Defendant
No.4, 5, 6, 8 & 12), on 16.08.2010 (Defendant No.2 &
3) and on 15.04.2021 (Defendant No.7). The suit as
against Defendants No.9, 10 and 11 has been dismissed
on 16.08.2010. It is not out of place to mention here
that originally, the suit was filed before the Learned
Civil Judge, Senior Division, Gajapati at
Paralakhemundi. On and after opening of this court,
the case was received on transfer to the file of this
court on the point of jurisdiction for its disposal
according to law.

6. The defendant No.1 appeared through his

counsel and filed his written statement in defence
denying all the plaint averments contending inter-alia
that there was no cause of action for the plaintiff to file
the present suit and suit for partition is not
 // 9 // Judgment in C.S.50/2009

maintainable when the property belongs to deceased

Alphounce who died issueless. Further it is pleaded
that there was no specific finding by the Hon’ ble
appellate court regarding in-operative of sale deeds
executed by him in favour of defendants no.6 to 14
though he has been declared as not the adopted son of
deceased Alphounce. The claim of the plaintiff is time
barred as such the suit is liable to be dismissed.

7. On the basis of the pleadings and Looking to

the above contradicting upon the pleading of the
parties and the documents submitted, and after hearing
learned counsel of both the sides, the following issues
are settled.
I S S U E S:
I. Is the suit maintainable ?
II. Was there any cause of action to file the suit ?
III. Are the plaintiffs and defendants No.1 to 5
successors and defendants of Choudhury Nayak
and Sambari Nayak ?
IV. Had Padro Nayak, one of the sons of Choudhury
Nayak filed T.S.13/96 and T.A.7/99 before this
Court and in the Court of Addl. Dist. Judge,
Paralakhemundi seeking for a declaration that the
deed of adoption is not binding on him ?
 // 10 // Judgment in C.S.50/2009

V. Is the finding of the Appellate Court in T.A.7/99

final and binding on all the defendants ?
VI. Will there be any direction to defendants to
partition the suit property into two equal parts and
allot one such share to the plaintiffs ?
VII. Are the Plaintiffs entitled to the relief sought
for ?

8. In order to substantiate the case, the plaintiff has

examined five witnesses including himself as P.W.4
and also exhibited four documents in support of his
case including the suit ROR vide Khata No.13. On the
other hand the contesting defendants did not adduced
any evidence either oral or documentary in support of
his pleading in written statement. I have heard
arguments from the learned counsel for the plaintiff
and defendant and perused the materials on record in a
meticulous manner. Now let me decide the suit on
evaluation of the issues taking into consideration the
contents of the pleadings as well as the evidence on
record.

Decision on Issue No. I & II:

9. Since there is dispute between the parties that the
plaintiff and his other co-sharers are possessing the suit
 // 11 // Judgment in C.S.50/2009

land disproportionately, as per their convenient,

without effecting partition by metes and bounds and
they were also paying rent to the concerned revenue
authorities and obtaining receipts thereof. The
plaintiffs claim partition of their share from the suit
properties, though the plaintiffs have demanded for
partition of the suit land, to which the defendants
showed their indifferent attitude, for which, the
plaintiffs have been compelled to file the present suit
for partition stating the cause of action as on
01.06.2006, when the defendants refused to make
partition of suit properties by metes and bounds.
Plaintiffs have also paid required fixed court fee of Rs
300/- for the relief as prayed for. The parties to the suit
are the inhabitants of village Raising under
P.S:Mohana the District of Gajapati, within the
territorial jurisdiction of this Court, I find Plaintiffs
have the right to file this suit before this Court. That
apart, the nature of this suit is cognizable under Civil
Procedure Code. So, I find that the suit filed by the
Plaintiffs are maintainable in its present form.

10. This is also the mandate of law under the

provision of order 7 Rule 1(e) of CPC that cause of
action must be clearly given. In the case in hand, the
 // 12 // Judgment in C.S.50/2009

plaintiff state that, the cause of action arose on dated

01.06.2006, when the defendants shown indifferent
attitude towards the plaintiffs and refused to make
partition of the suit land and finding no other
alternative, the plaintiffs have come up with the suit in
present. Therefore, issue No.I & II are answered in
favor of the plaintiffs against the Defendants. Hence,
these issues are answered accordingly.

Decision on Issue No III:

11. Here in the instant case, the plaintiffs have
claimed partition in respect of the suit properties which
has been recorded in favour of Late Alphounce Nayak
who died issueless leaving the suit properties intestate.
On careful consideration of the genealogy, it reveals
that the plaintiffs are the son of late Pedara Nayak and
the defendants are the successor of Late Leonard
Nayak. Further, Tina Nayak and Alphounce Nayak
have been died issueless. All these branches are
belonging to common ancestor late Choudhury Nayak.

12. Admittedly on careful consideration of suit

ROR vide Khata No.13 which comprises with three
plots all total measuring of Ac. 1.5950 decimals stands
recorded in favour of above recorded tenant as
 // 13 // Judgment in C.S.50/2009

discussed. The plaintiffs have also adduced evidence

in this regard that suit land has not been partitioned by
metes and bounds amongst the co-sharers at any point
of time, which requires for partition and their share
may be determined through adjudication of this suit.
The evidence of the plaintiffs have been remained
unchallenged and the contesting defendant No.1 has
not preferred to challenge the documents filed by the
plaintiffs which have already been exhibited in this
case.

13. The parties are Christian by religion so, the

law of succession for Hindus under Hindu Succession
Act is not applicable to them when the property of a
male Christian remain intestate having no issue for
succession. Section 2(d) of Indian Succession Acts
defines ‘Indian Christians’ as a native of India who is
or in good faith claims to be, of unmixed Asiatic
Descendant and professes any form of Christian
religion. Chapter-II of Part-V of Indian Succession
Act deals with the Law of Succession with regard to
the Christians. The scheme of succession to the
property of Late Alphounce Nayak left intestate is to
be divisioned between his brothers and sisters in the
following manner, since it is evident that the deceased
has died issueless having no widow and no lineal
 // 14 // Judgment in C.S.50/2009

descendants or co-laterals, or father or mother except

his brothers who are contesting the suit for partition.
Here in the instant case, the Leonardo and Pedera the
brother of the Late Alphounce have also expired and
the plaintiffs and the defendants are the children of
Pedera and Leonardo respectively according to the
genealogy. In collateral consanguinity, two persons
who are not in direct line of assent or decent have a
common ancestor thus two brothers are related by
collateral consanguinity. So as per the law of
succession, each living brother and sister takes a share
and the children of predeceased brothers and sisters
take the share which would have been allotted to their
parents if they had been alive. When the properties are
considered for partition to determine the share of the
parties and taking note of the provision of succession
of Christian Community this court find that the father
of the plaintiffs and the father of the defendants No.1
to 5 are both entitled to equal share i.e. Half of the suit
properties each and since they have expired so, under
the law of succession, the properties which would
have been allotted to them if they are alive to be
devolved upon their children. In that view of the
matter the plaintiffs are entitled to half share out of
the suit properties and the rest half of the share shall
 // 15 // Judgment in C.S.50/2009

be allotted in favour of defendant no.1 to 5. Hence,

the issue is answered in favour of plaintiff
accordingly.

Decision on Issue No.IV & V:

14. Both these issue are interlinked and
interdependent and based on documentary evidence.
The plaintiff in order to substantiate the issue has
produced and exhibited the certified copy of Judgment
passed in T.S.13/1996 vide judgment dtd.03.12.1998
under Ext.3.
On careful reading of the said judgment, as it
appears that the father of the plaintiffs Pedara Nayak had
filed a suit against the father of the present defendant
Leonard Nayak for declaration that the defendant no.1 is
not the adopted son of Late Alphounce Nayak and also
to declare the deeds executed by the defendant no.1 as
void. After careful examination of the record and the
evidence of the parties the then learned Senior Civil
Judge, Gajapati at Paralakhemundi has been pleased to
dismiss the suit on contest. Being aggrieved to the
judgment and the decree the father of the plaintiff had
preferred appeal before the Hon’ ble Addl. District
Judge, Gajapati at Paralakhemundi vide Title appeal
no.7/1999 which came to be disposed off on 08.10.2004
 // 16 // Judgment in C.S.50/2009

wherein the Hon’ ble Court has allowed the appeal and
set aside the Judgment and decree passed by the learned
Court below and further declared that the deed of
adoption is not binding on the plaintiff and it cannot
override any other statutory laws which govern the
parties who are successor in interest of late Alphounce.
In the result the very claim of the defendant no.1 that he
was the adopted son of Late Alphounce Nayak has been
decided in negative against the defendant no.1 vide
Ext.4. So on a careful discussion and on perusal of the
judgment and decree passed in both these cases it is
held that Pedara Nayak the father of the plaintiff had
succeeded in the appeal justifying in the present suit for
a share from the properties of Late Alphounce Nayak
who died intestate. And the Judgment and decree of
Hon’ ble Appellate Court is still in force and has not
been set aside by the Hon’ ble High Court of Orissa in
second appeal. The plaintiffs as well as the defendants
have no where pleaded specifically either in the plaint or
in the written statement by the defendant no.1 regarding
pendency of any second appeal arising out of above
suits. Thus the order of the Appellate court is therefore
binding on both the parties to the suit when the same has
not been set aside or modified in second appeal. Hence,
the issues are answered in favour of the plaintiffs.
 // 17 // Judgment in C.S.50/2009

Decision on Issue No.VI & VII:

15. Here, the question comes as to how and in what

manner, the property/properties should be divided by
metes and bounds and separate possession shall be
given to the plaintiffs out of the suit land as per their
entitlement as determined by this court as above. It is
of course true that `Separation of share' is a species of
'partition'. When all co-owners are separated, it is a
partition. Separation of share/s refers to a division,
where only one or only a few among several co-
owners/coparceners get separated, and others continue
to be joint or continue to hold the remaining property
jointly without division by metes and bounds. For
example, where four brothers owning a property divide
it among themselves by metes and bounds, it is a
partition. But, if only one brother wants to get his share
separated and other three brothers continue to remain
joint, there is only a separation of the share of one
brother. In a suit for partition or separation of a share,
the prayer is not only for declaration of plaintiff's share
in the suit properties, but also division of his share by
metes and bounds. Therefore, considering to the above
facts enunciated coupled with the relief claimed in the
present suit, this court is of view that this is a suit for
 // 18 // Judgment in C.S.50/2009

partition of plaintiffs share out of the suit properties

and the interest of Late Alphans Nayak from joint-ness
with the defendants.

16. Rule 18 of Order 20 of the Code of Civil

Procedure (`Code' for short) deals with decrees in suits
for partition or separate possession of a share therein
which is extracted below:

"18. Decree in suit for partition of property or

separate possession of a share therein.-- Where the
Court passes a decree for the partition of property or
for the separate possession of a share therein, then, -

(1) if and in so far as the decree relates to an estate

assessed to the payment of revenue to the Government,
the decree shall declare the rights of the several parties
interested in the property, but shall direct such partition
or separation to be made by the Collector, or any
gazetted subordinate of the Collector deputed by him
in this behalf, in accordance with such declaration and
with the provisions of section 54;

(2) if and in so far as such decree relates to any other

immovable property or to movable property, the Court
may, if the partition or separation cannot be
conveniently made without further inquiry, pass a
preliminary decree declaring the rights of the several
 // 19 // Judgment in C.S.50/2009

parties, interested in the property and giving such

further directions as may be required."

17. The principles emerge regarding partition suit

has been laid down by the Hon’ble Apex Court in the
case of Shub Karan Bubna @ Shub Karan vs Sita
Saran Bubna & Ors decided on 21 August,
2009(Courtesy www.indiakanoon.com), wherein the
Hon’ble Court held that

“As noticed above, the Code does not

contemplate filing an application for final
decree. Therefore, when a preliminary
decree is passed in a partition suit, the
proceedings should be continued by
fixing dates for further proceedings till a
final decree is passed. It is the duty and
function of the court. Performance of such
function does not require a reminder or
nudge from the litigant. The mindset
should be to expedite the process of
dispute resolution.”

18. Here in the instant case, both the suit Plot

No.677 and 626 have been classified as Homestead
properties more-fully described as residential house
and the partition or separate possession of the plaintiffs
 // 20 // Judgment in C.S.50/2009

share cannot be conveniently made without further

inquiry by a civil Court commissioner, therefore, it is
necessary to pass a preliminary decree declaring the
rights of the plaintiffs and other parties, interested in
the property and for separation of plaintiffs land out of
the suit land, a civil court commissioner shall be
deputed for making convenient separation of property
in favour of the plaintiffs out of the suit land. Hence,
the issues are decided in favour of the plaintiffs
accordingly. It is made clear here that the proceedings
shall be continued by fixing dates for further
proceedings till a final decree is passed in this suit after
final allotment.

19. In view of the entirety of the facts and

circumstances of the case, So far as the other reliefs
available to the plaintiff is concerned, it is to be held
that plaintiff is not entitled to any other relief which he
has not specifically prayed for. The issue is answered
accordingly. Hence the order.

ORDER

The suit be and the same is decreed on contest in

part against the defendant No.1 and Ex-parte against
the defendant No. 2 to 14, but under the circumstances,
without any cost. In the result, considering all aspects,
 // 21 // Judgment in C.S.50/2009

the suit of the plaintiffs is decreed on contest declaring

that the plaintiffs being the sons & daughters of Late
Pedara Nayak have 1/2 share from the interest of
deceased Alphans Nayak in view of Law of Indian
Succession Act and the defendant no.1 to 5 are jointly
entitled to rest ½ share from the interest of deceased
Alphans Nayak. The suit land being covered with
homesteads, separation cannot be conveniently made
without further inquiry by deputing a civil court
commissioner to carve out the allotment of the
plaintiffs and also to give delivery of separate
possession in favour of the plaintiffs as per
determination made by this court. The civil court
commissioner shall give respect to the possession of
parties during final allotment. The Civil Procedure
Code does not contemplate filing an application for
final decree. Therefore, when a preliminary decree is
passed in a partition suit, the proceedings should be
continued by fixing dates for further proceedings till a
final decree is passed. Parties are left to bear their own
cost. Prepare preliminary decree accordingly.

The pleader fee at contested scale.

Senior Civil Judge,

R. Udayagiri.
 // 22 // Judgment in C.S.50/2009

24.11.2021

The above judgment is typed to my dictation,

corrected by me and pronounced in the open court
today this 24th day of November, 2021.

Senior Civil Judge,

R. Udayagiri.
24.11.2021

APPENDIX
List of witness examined on behalf of plaintiffs:
P.W.1 Raphael Nayak
P.W.2 Sukadev Singh
P.W.3 Pratap Nayakl
P.W.4 Prasanna Kumar Nayak
P.W.5 Seriyal Nayak
List of witness examined on behalf of defendants:
-- None --
List of documents filed on behalf of plaintiff:
Ext-1 R.O.R. of Khata No.13 of Mohana mouza
Ext-2 Death Certificate of Pedara Nayak
Ext-3 Certified Copy of Judgment & Decree in
T.S.13/1996
Ext-4 Certified Copy of Title Appeal No.7/1999
List of documents filed on behalf of defendants:
 // 23 // Judgment in C.S.50/2009

-Nil-

Senior Civil Judge,

R. Udayagiri
24.11.2021