NALADHAR MAHAPATRA Vs. SEVA DIBYA

JUDGEMENT

(1.) Both the appeals arise out of a common judgment. T.S. No. 122 of 1973 was filed by Sova Dibya for partition of Schedule 'A' properties, claiming 6 annas share and Title Suit No. 206 of 1973 was filed by her praying for permanent injunction. As in both the suits and facts alleged were same, they were heard analogously and a common judgment was passed in both the suits. In First Appeal No. 34 of 1980, the judgment and decree of T.S. No. 206 of 1973 is challenged, while First Appeal No. 162 of 1978 arises out of T.S. No. 122 of 1973. Defendants 1 and 2 are same in both the appeals.

(2.) The genealogy between the parties as described in the plaint is as follows :- The brief facts as stated by the plaintiff are, the properties described in Schedule 'A' of the plaint stood jointly recorded in the name of Banchhanidhi, Balunki, Iswar and Paramananda. In some items separate notes of possession of the parties were also noted. Each of the members was in amicable possession of different plots but there was no partition by metes and bounds. Paramananda did not have any issue, due to affection had gifted his share equally to Banchhanidhi and Balunki on 21-1-1929. Each of the branch is entitled to 1/4th share i. e. 4 annas. A Banchhanidhi and Balunki are entitled to the share of Paramananda that is plaintiff claimed 6 annas share.

(3.) Banchhanidhi had married one Kokila. Kokila died when Pranakrushna, son of Banchhanidhi was still a child. Sabitri defendant No. 2 was a distant relation of Kokila. Banchhanidhi brought Sabitri to take care of Pranakrushna. As Sabitri looked after Prankrushna as son and since there was no other lady member in the family she was treated well by everybody. Banchhanidhi died near about the year 1942 and Pranakrushna died in the year 1954. After the death of both the male members defendant No. 1 who happens to be the brother' son of Sabitri visited the family and in that process without any consideration and dominating over the will of Sabitri who had no right to the properties belonging to Banchhanidhi has taken away a fraudulent sale deed regarding some properties which is described as Schedule 'B' in the plaint. Sabitri being a stranger to the family could not have executed a sale deed on 15-7-1957 it favour of defendant No. 1. With these assertions, plaintiff has prayed for declaration that the sale deed executed in favour of defendant No. 1 by defendant No. 2 to be invalid, inoperative and also prayed for partition. In T.S. No. 206/73, plaintiff prayed for injunction. 3A. Defendants 1 and 2 in the joint written statement pleaded that after the death of Kokila, Banchhanidhi married Sabitri as his second wife to look after Pranakrushna and as such Sabitri is the widow of Banchhanidhi and not a stranger to the family. After the death of Pranakrushna for family necessity, defendant No. 2 had sold the properties for consideration to defendant No. 1. Alternatively it was pleaded by defendant No. 1 that from the date of sale i.e. 15-7-1957, he being in possession of the Schedule 'B' properties openly with hostile animus, has perfected his title by adverse possession. Defendants 3 to 5 filed a joint written statement and almost admitted the facts averred in the plaint. 3B. The Trial Court after assessing the evidence on record gave the findings in T.S. No. 122/73 :