DINABANDHU PRADHAN Vs. CHAITAN SAHU

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants against the confirming judgments, in a suit for possession and permanent injunction.

(2.) Respondents 1 and 2, the plaintiffs instituted a suit for declaration of their title, confirmation of possession and for injunction in respect of homestead plot No. 2255 and a portion of plot No 2256 from the west measuring an area of Ac 0.03 decimals in mouza Nuagarh. The total extent of plot No. 2255 is AC 0.10 decs, which is situated to the west of plot No. 2256 with an area of Ac. 0 09 decs, plot No. 2255 originally belonged to one Ananta Lenka and plot No. 2256 belonged to Mohan, Bhagi and Bahudi. Jagu and Raghu were the sons of Ananta. After Jagu's death on 10-6-1964 his sons along with Raghu executed a sale deed in respect of plot No. 2255 in favour of plaintiffs 1 and 2 and late father of defendants 1 and 2 under Ext. A. This sale deed (Ext.A) however, was cancelled on 16.7.1964 and on the very day, the vendors executed another sale deed in respect of those properties in favour of defendant No. 3 Dhobani Bewa. On the same day, the heirs of Mohan Lenka executed a registered sale deed in respect of western portion of Ac. 0.03 decimals of plot No. 2256 in favour of Dhobani (defendant No. 3) The eastern portion of Ac. 0.06 decs of plot No. 2256 was sold to one Chinta Parida, who also sold it to the late father of the defendants in the year 1941. Defendant No. 3 purchased Ac. 0.03 decimals from plot No. 2256. Thus, it is claimed that she remained in possession over Ac.0.13 decimals covered under one compact plot. She however, sold Ac. 0.13 decimals under both the plots to the plaintiffs 1 and 2 on 20-8- 1976 for a consideration of Rs. 4,000/- and put them in possession. Defendants 1 and 2 being the adjoining owners had always interfered with the possession of plaintiffs 1 and 2 whenever they intended to put new structure. Defendants 1 and 2 filed a common written statement refuting the claim of the plaintiffs, whereas defendant No 3 filed a separate written statement supporting the plaintiffs' case After her (defendant No. 3's) death, her heirs did not file any separate written statement nor contested the suit. Defendants 1 and 2 while controverting the allegations in the plaint, inter alia, pleaded that their late father along with plaintiffs 1 and 2 purchased the lands covered under plot No. 2256 on 20-6-1964.and since then they have been in possession alongwith the plaintiffs and the sons. So far as the cancellation of the deed was concerned, it was never given freely and it was obtained by misrepresentation. The sale deed in favour of defendant No. 3 was not acted upon nor she possessed plot No. 2255 in pursuance of the sale deed. Though their late father purchased Ac.0.06 decimals from plot No. 2256 in the year 1941, they had been in possession of Ac.0.09 decimals openly, continuously the hostile to the knowledge of all including defendant No. 3 and her vendors. It was therefore claimed that the sale deed executed by defendantNo. 3 in favour of plaintiffs 1 and 2 was without consideration and not acted upon and since defendants 1 and 2 are in possession of Ac 0.03 decs, from plot No. 2256 and in joint possession of plot No. 2255, there was no necessity to create any disturbance. The defendants took a plea that the suit was barred by limitation.

(3.) The trial Court on consideration of the evidence on record, come to hold that the plaintiffs' vendors had acquired title in respect of plot No. 2256 by adverse possession and thus, was competent to alienate it in favour of plaintiffs 1 and 2 and in turn the sale deed in respect of plot No 2255 was valid and therefore title passed to the plaintiffs 1 and 2. It is further held that defendants 1 and 2 did not acquire any interest in respect of Ac. 0 03 decs, of land from plot No. 2256 which defendant No.3 had purchased and that was rightly conveyed to the plaintiffs. The plaintiff's suit was decreed. Defendants 1 and 2 preferred an appeal before the learned Second Additional District Judge challenging the judgment and decree passed by the Additional Sub-Judge. The learned lower appellate Court held that Ext.A having been cancelled, no right accrued in favour of the defendants-appellants, father or the defendants inasmuch as Ext. A having been produced by defendants 1 and 2, it cannot be said that they had no knowledge about cancellation. The plaintiffs who had filed the cancellation deed marked Ext 2 was admitted into evidence without objection and therefore, the plea that the consent was obtained in the deed of cancellation by misrepresentation was negatived. The appellate Court held that by virtue of the sale deed dated 16.7.1964 under Ext. 4 defendant No. 3 derived title inasmuch as she otherwise had acquired title by adverse possession, having remained in possession for a period of more than 12 years from the date of her purchase till she sold the properties to the plaintiffs on 3-11-1976. Thus, it was held that defendant No 3 had valid right to sell the property in favour of the plaintiffs. The plaintifs' title in respect of Ac 0.03 decimals of land from plot No. 2256 was upheld. On the question of adverse possession also, the appellate Court affirmed the decision Thus, the appellate Court affirmed the judgment and decree of the trial Court and decreed the suit.