KRUSHNA MOHAN PATNAIK Vs. DAMBARUDHAR PATNAIK

JUDGEMENT

(1.) THE Appellant, who is Defendant No.2 in the Court below, challenging the Judgment and decree dated 16.12.1982 and 23.12.1982 respectively passed by the Learned Sub -Judge, Athagarh in Title Suit No.2 of 1979 has filed this appeal.

(2.) THE facts of the case are as follows Respondent Nos. 1, 2 and 3 as Plaintiffs filed a suit which was registered as Title Suit No.2 of 1979 with the following prayer:

(3.) THE properties described in the schedule of the plaint are all ancestral properties belonging to the Plaintiffs and Bansidhar (D -1). Those properties were inherited from their grand father and all the parties are still living jointly and constitute a Hindu Mitakshara joint family as there was no severance of joint status between them at any point of time. Thus, there was no question of any previous partition by metes and bounds. Therefore, the further case is that about 50 years back, they shifted to Dhenkanal from Tigiria and residing there and Defendant No.1 being the eldest and Katra of the family. While Defendant No.1 was looking after the joint family properties, dissension and ill -feeling arose between the Plaintiffs and Defendant No.1 as a result of which Defendant No.1 has alienated the suit properties described in Schedule 'N' of the plaint by virtue of a registered sale deed in favour of Defendant No.2, Krushna Mohan Pattnaik on 26.8.1968. Defendant No.1 has also alienated Schedule 'B' property on 26.9.1968 by virtue of a registered sale deed in the name of his wife, Nisarnani. Nisamani specifically alienated the said property in favour of Defendant No 3 on 16.6.1979 on the strength of another registered sale deed. Defendant No.1 gifted the Schedule 'C' properties on 28.9.1979 in favour of Defendant No.3. The aforesaid sale deed and gift deed in favour of Defendant, Nos. 2 and 3 have not been acted upon or delivery of possession has not been made to the valid. Therefore, the same are not binding on the Plaintiffs as well as Defendant No.1.