BIRUPAKSHYA DAS Vs. KUNJA BEHARI

JUDGEMENT

(1.) THIS is a plaintiffs second appeal against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title, recovery of possession and for damages which has been assessed by the plaintiff at Rs. 210/- for three years. The plaintiff is the brother of the lather of the present defendant. Admittedly the disputed land belonged to Dibakar, the father of the defendant, and the defendant himself. The plaintiff bases his title on the basis of an unregistered sale-deed elated 27-5-1940 (Ex. 1) which purports to be for a consideration of Rs. 250/-. It is to be mentioned here that the case is coming from the district of Sambalpur and is governed by the Central Provinces Tenancy Act. The plaintiff's version is that the transaction, which was executed by Dibakar on his own behalf and on behalf of his minor son kunjabehari, was for legal necessity, and as such is binding against the present defendant Kunjabehari. The plaintiff's further case is that possession was delivered thereafter and the plaintiff remained in possession of the property in suit through bhag tenants since 1948 and then for the years 1948 to 1950 the defendant was also inducted into the land and possessed as a bhag tenant of the plaintiff and since 1952 the defendant is not paying the rent due, so the present suit has been brought in 1952 for ejectment.

(2.) THE Courts below have found that the sale-deed is a genuine transaction and for consideration negativing the defence plea that no consideration passed and the sale-deed is not genuine. THE lower appellate court, however, has further found that the plaintiff was in possession of the land in dispute till 1948 through bhag tenants and through the defendant also as a bhag tenant for the years 1948 to 1950. But while the trial Court had decreed the suit relying upon a decision of this Court that the unregistered sale-deed conveyed title in favour of the plaintiff as the case is governed by the provisions of S. 46 of the C.P. Tenancy Act, the lower appellate Court however has dismissed the plaintiff's suit on the ground that the plaintiff had not been able to prove his title.