Orissa High Court
Judhistir Sahu @ Muli Sahu vs Hari Sahu (Since Deadl) ... on 13 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
A.H.O. No.143 of 1995
Judhistir Sahu @ Muli Sahu .... Appellant
Mr. B. H. Mohanty, Advocate
-versus-
Hari Sahu (since deadl) substituted .... Respondents
his L.Rs. and others
Mr. N. K. Acharya, Advocate for Respondent No.7(aa)
CORAM:
THE CHIEF JUSTICE
JUSTICE A. K. MOHAPATRA
ORDER
13.12.2021
Order No.
28. 1. The limited prayer that is urged by the Appellant in the
present appeal, which is directed against a judgment dated 18th
October, 1995 passed by the learned Single Judge in First
Appeal No.99 of 1979, is that certain observations made in the
impugned judgment in the said First Appeal which was at the
instance of Defendant No.1 in a suit for partition, require to be
clarified.
2. The Plaintiff-Respondent No.1 in the First Appeal had filed a
Title Suit No.7 of 1978-I in the Court of subordinate seeking
partition of her undivided 1/8th share of the suit property. On
contest, the Trial Court decreed the suit in the preliminary form
against Defendants 1, 9, 11, 12, 13 and 15 and ex parte against
the other Defendants. The share of the Plaintiff (Respondent
No.1 of the appeal) was determined as 1/12th. A direction was
issued to the Civil Court Commissioner to effect partition by
metes and bounds except the dwelling house.
3. One of the issues that arose was Issue No.8 in regard to
which the trial Court held that the factum of adoption as
claimed by Defendant No.15 has well been proved and there is
an implied admission as to such adoption by Defendant No.1.
4. It is in regard to this observation that the present appeal has
been filed. It is pointed out by Mr. Mohanty, learned counsel
for the Appellant that the observation in para 6 of the impugned
judgment to the effect that "the claim and/or counter claim, as
regards the issue of adoption of Defendant No.1 and Defendant
No.15, is neither relevant nor pertinent so far as the claim for
partition by the Plaintiff is concerned" requires to be clarified
by this Court.
5. It is seen that the learned Single Judge further proceeded to
observe that the above submission on behalf of Defendant No.1
was neither refuted by learned counsel for Plaintiff-
Respondent No.1 not controverted by Defendant No.15. The
learned Single Judge was of the view that the framing of Issue
No.8, in the contest of the suit, was unwarranted. The
impugned judgment then states: "If any time in future such
dispute arises, certainly it would be open to the parties to raise
such issue and the same shall be decided by the court in proper
way."
6. It is now pointed out by Mr. Mohanty that after the filing of
the aforementioned First Appeal, sometime in 1991, a suit was
filed by the present Appellant. Arising from the decision of the
trial Court in that suit, and the order of the first appellate Court,
the present Appellant has filed RSA No.367 of 2019 in this
Court which is still pending. Mr. Mohanty's only prayer is that
in the said pending RSA, it should be open to the Appellant to
raise the issue of legality of the adoption in question
notwithstanding the impugned judgment of the learned Single
Judge, which is challenged in the present appeal.
7. Learned counsel for the Respondents has no objection to the
aforementioned clarification being issued. It is accordingly
clarified that the issue concerning adoption of Defendant No.15
by Defendant No.1 can be raised and examined in the pending
RSA notwithstanding the impugned order dated 18th October,
1995 of the learned Single Judge in First Appeal No.99 of
1979. All the contentions of the parties vis-à-vis the said issue
are left open to be urged in RSA No.367 of 2019.
8. The appeal is accordingly disposed of in the above terms.
(Dr. S. Muralidhar)
Chief Justice
( A. K. Mohapatra )
Judge
M.. Panda
