SHIBA SANKAR NANDA Vs. PADMINI NAIK

JUDGEMENT

(1.) IMPUGNED in this appeal is the judgment and decree dated 28.4.1990 and 7.5.1990 of the First Appellate Court dismissing T.A. No.1 of 87 and confirming the judgment and decree dated 24.11.1996 passed by the learned Subordinate Judge, Sambalpur in T.S. No.53 of 1981, dismissing the suit of the appellant.

(2.) IN brief, case of the appellant is that in the year 1933, his father Madhusudan purchased the property measuring 0.075 acre of land with house constructed thereon appertaining to Major Settlement Plot No.830, area of 0.050 acre and 830/1358, area of 0.025 acre, in total 0.075 acre of Khata No.492 and 497 of Modipara of Sambalpur Town, Unit No.7, P.S. No.18, Tahasil No.226, Sambalpur District, Sambalpur from Samsundar Mishra and Gopinath Gadtia for a consideration of Rs.140/-(A Schedule). Madhusudan paid this money to his brother Raghunath Nanda (predecessor of respondent no.2, 2(a) to 2(d)) for getting the sale deed executed and registered. A house was constructed on the said land by Madhusudan under the supervision of Raghunath Nanda. Raghunath and his family was permitted by Madhusudan to live in a part of the house("B schedule") as he had no means to pay the rent for rented accommodation. After marriage of his daughter, Raghunath shifted to his daughter's house and while living their, he expired. After Raghunath left the portion in his occupation, Madhusudan let out the same to one Dhananjaya Sahu on monthly rent of Rs.60/-. Subsequently, when a House Rent Control Case was filed by Madhusudan against the tenant, it transpired that Raghunath got registered the sale deed in the joint name of Madhusudan and his own name without contributing any money towards consideration amount. After vacation of the premise by the tenant, Madhusudan remained in khas possession of the said portion of the house along with other portion of the suit property. IN the meantime major settlement operation commenced in the area wherein respondent no.2 claimed herself to be a married wife of Raghunath and raised her claim over half of the "A schedule" property. The settlement authority recorded the claim of Raghunath Nanda as well as Madhusudan Nanda while rejecting the claim of respondent no.2, thus, creating a title and right of Raghunath Nanda in the "A schedule" property. Madhusudan died on 26.11.1980 while in exclusive possession in his own right of the entire "A schedule" property. After the death of Madhusudan, appellant as well as his brother, respondent no.3 allegedly inherited the suit property. Respondent no.2 executed a registered sale deed dated 2nd July, 1981 in favour of respondent no.1 in respect of 1380.030 decimals, out of the impugned property, with a view to derive benefit of the property which she otherwise could not get. Challenging the said sale deed executed by respondent no.2 as fictitious, collusive, sham and nominal transaction without consideration, the suit was filed by the appellant.

(3.) ONCE the execution of the impugned sale deed dated 2.7.1981 (Ex.F) was admitted by the appellant, there was no necessity to examine the scribe who had written the document. Genuineness of Ex.F has been challenged only on the ground that respondent no.2 had no right, title and interest in the suit property which she could transfer in favour of respondent no.1. It is not the case of the appellant that it is a false and fabricated document.