DAITARI PRASAD NAIK Vs. UMAKANTA NAYAK

JUDGEMENT

(1.) THE plaintiffs are the petitioners. THEy filed Original Suit No. 24 of 1968 in the Court of the Subordinate Judge, Balasore, for partition of the disputed property consisting of 2.30 acres. THE plaint allegation was that the disputed property belonged to late Narayan Sahu who died leaving behind a son (defendant No. 4) and two daughters (defendants 5 and 6). He is said to have acquired this land by a patta and about 11 years before the suit he entered into a contract with the plaintiff No. 1 for selling the northern half of the suit property. He took an advance of Rs. 200/-and delivered possession of the northern half but died before he could execute the sale deed. Plaintiff No. 1 (petitioner No. 1) built a house on the northern part of the suit plot after possession was delivered to him and was residing and carrying on his business there. THE house was, however, washed away in the unprecedented floods of 1961 and the petitioner received compensation for the loss of the house from Government. After the death of Narayan Sahu plaintiff No. 1 made repeated requests for execution of sale deed by defendants 4 to 6. Defendant No. 4 did not execute any sale deed. Defendants 5 and 6 however executed a registered sale deed in favour of the plaintiffs in respect of their two-thirds share of the suit property from the northern side of the suit lands, on 30-12-67 on receipt of proper consideration. Thus, the plaintiffs acquired title and are in possession of two-thirds. Defendant No. 4 sold his one-third share to defendants 1 to 3 by a registered sale deed on 4-10-61. That sale is collusive, fraudulent and without consideration. Defendants 1 to 3 had notice of the prior contract executed by Narayan Sahu in favour of the plaintiff.

(2.) DEFENDANTS 1 to 3 contested the suit alleging denial of notice of the previous contract. They claimed that the disputed land was Anabadi and belonged to them as a part of their ancestral estate and had fallen to their share in a partition of the estate. After vesting of the estate they came to know that the property has been leased out in favour of Narayan Sahu, though the property was in their possession and enjoyment. They stated that in good faith they purchased the suit land except for 0.02 acre from defendant No. 4, and continued in possession. Plaintiffs' title and possession were denied.

(3.) FOR reasons analysed above, the learned Subordinate Judge did not exercise his jurisdiction illegally or with material irregularity. Neither was there improper exercise of discretion on his part.