SMT. LAXMIPRIYA BHUYAN Vs. NARMADABALA PARIDA AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Subordinate Judge, Balasor, in Misc. Case No. 2 of 1974 on an application being filed by the Appellant under Order 21, R.100. Code of Civil Procedure, before its amendment in 1976. The application was filed on 2 -1 -1974. The relevant amendment to the Code of Civil Procedure, came into force with effect from 1 -2 -1977 while the said application was pending and, therefore the amended provision would apply. It was pleaded in the application that the applicant had purchased the suit land from opposite parties 2 and 3 by two registered sale deeds dated 2 -3 -1959 and thereafter continued to be in possession of the same. She had constructed a kutcha house and had planted several cocoanut and mango trees and renovated a tank and had reared fish therein. On 26 -11 -1973 the Civil Court Commissioner went to give delivery of possession to opposite party No. 1 but as she resisted possession could not be delivered. Subsequently, the said opposite party No. 1 with the assistance of military police forcibly dispossessed her from the suit land. According to the averments in the application, the applicant was not a party in the original suit alleged to have been filed by opposite party No. 1 against opposite parties 2 and 3 and therefore, opposite party No. 1 had no right to dispossess the applicant. She thus prayed for restoration of her possession in respect of Ac.0.681/2 decimals of land mentioned in Schedule -Kha of the application.

(2.) OPPOSITE party No. 1 who is Respondent No. 1 in this appeal, filed objection denying the allegations made. According to her case, she was entitled to one -third interest over Schedule Kha and opposite parties 2 and 3 fraudulently took a sale deed from her in respect of her land for which she filed O.S. No. 25 of 1963 against them as well as against the husband and sons of the present applicant. That suit was decreed in her favour. The husband of the applicant never indicated that the applicant was in possession of the land. According to her case, the applicant was merely a benamdar and the suit having been decreed against her husband, she was bound by the decree and was not entitled to the relief sought for in the application. It was also stated that in the final decree proceeding, the applicant never raised any objection. On these averments, she prayed that the application be dismissed.

(3.) MR . Pal appearing for the Appellant contends that the learned Subordinate Judge failed to appreciate the evidence on record and his conclusion that the Appellant was a benamdar for her husband is not borne out by any evidence on record. It is also argued that in the absence of definite evidence to prove that the Appellant had any knowledge of the earlier suit, the learned Trial Judge committed an error in finding that the applicant was bound by the decree against her husband. Mr. Pal also argues that the evidence of possession has been illegally rejected and on the materials it must be held that the Appellant was in possession until she was dispossessed and therefore, invoking the provisions of the Code of Civil Procedure, she would be entitled to get back possession.