GOPAL PATRA Vs. LOKNATH PATRA

JUDGEMENT

(1.) -Plaintiffs are the appellants against the reversing judgment of the learned Subbrdidate Judge, Jagatsinghpur in a suit for declaration.

(2.) The short facts of the plaintiffs-appellants' case are that they filed a suit for declaration of title, confirmation of possession and alternatively for recovery of possession of the plaint schedule land. It is their case that the suit land was acquired by Nidhi Patra, father of plaint Nos. 1 and 2 by way of purchase from joint family funds. Nidhi Patra sold away the suit land in favour of defendant No. 2 by a sale deed on 9.10.1968 illegally without consideration and was an outcome of collusion of defendant Nos. 1 and 2 with Nidhi Patra. According to the plaintiffs, they possessed the suit land continuously without any interruption till date and even if such sale deed exists, defendant No. 2 never possessed the suit land and the plaintiffs-appellants possessed the same without any interruption from any side. The said land was sold away to defendant No. 1 by defendant No. 2 on 19.9.1991 without any consideration and whereafter on the strength of such sale deed, the plaintiffs initiated a proceeding under Section 144, Cr. P.C.

(3.) The learned trial Court found that (a) the suit property is the self-acquired property of Nidhi (b) sale deed executed by Nidhi Patra is for legal necessity and is valid (c) the plaintiffs are in continuous possession of the suit property althroughout and defendant No.2 was never in possession (d) title of defendant No. 2 was extinguished as he was not in possession. The plaintiffs' suit was decreed on the aforesaid finding. The defendants 1 and 2 filed Title Appeal and the learned lower appellate Court found that defendants 1 and 3 are in possession of the suit property contrary to the finding of possession in favour of the plaintiffs found by the trial Court and in view of the finding of the trial Court that the said deed executed by Nidhi is valid, the right, title and interest of defendant No. 2 was declared as there was no cross-objection against the adverse finding rendered by the trial Court.