BALARAM DAS Vs. JAYAKRUSHNA DAS

JUDGEMENT

(1.) JAYAKRUSHNA Das, Respondent No. 1 brought the suit giving rise to this appeal for declaration of his title to and for confirmation of his possession over, or, in the alternative, recovery of possession of A. O. 78 acre of land as detailed in the plaint schedule and for permanent injunction restraining the appellants who were defendants 1 and 2 in the Court below from disturbing his possession. The disputed property admittedly belonged to one Satyabadi Rath whose son was ramchandra Rath. After Saryabadi's death Ramchandra possessed the disputed properties. According to the case of the plaintiff, Ramchandra Rath died unmarried about 15 years before the institution of the suit leaving behind him his mother shara-dha Dibya and his sister Gelhi Dibya (defendant No. 4 ). Sharadha then possessed the disputed properties and she died about ten years before the institution of the suit leaving behind her daughter Gelhi Dibya as her sole surviving heir. Gelhi possessed the properties thereafter and on 7-4-1964 sold the same to the plaintiff by the registered sale deed Ext. 1 and put him in possession thereof. This is how the plaintiff claims title to and possession over the disputed properties.

(2.) ACCORDING to the contesting defendants 1 and 2 (appellants in this appeal)Satyabadi Rath had uterine brother called Bidyadhar. Bidyadhar's son was Gangadhar. After the death of Satyabadi and Bidyadhar, Ramchandra and Gangadhar lived jointly, and after the death of Ramchandra, which, according to the defendants, took place about 35 years before the suit, Gangadhar became exclusively entitled to the disputed properties. After Gangadhar's death, his widow defendant No. 3 became the owner of the disputed lands and remained in possession thereof in her own right for more than twelve years till she sold the same to defendants 1 and 2 by the registered sale deed Ext. A dated 31-1-1964 and put them in possession thereof. According to the defendants, Gelhi defendant no. 4 is not the sister of Ramchandra and is in no way related to him and she never acquired any title to tile disputed lands and she was never in possession thereof. The sale deed Ext. 1 executed by defendant No. 4 in favour of the plaintiff is accordingly invalid and plaintiff has not acquired any title to the disputed properties.

(3.) ROTH the Courts below concurrently held that Satyabadi had no brother called bidyadhar and that there is no relationship at all between Satyabadi's family and the family of Bidyadhar. Accordingly, they held that defendant No. 3 Sharadha dibya, the widow of Gangadhar had no right to the disputed properties and that the sale deed Ext. A which she executed in respect of the same in favour of defendants 1 and 2 conferred no title on the latter. Regarding the question whether the p laintiff had discharged the onus which ly upon him to establish that gelhi is the sister of Ramchandra, both the Courts below considered the evidence let in on the plaintiff's side and were not satisfied that such evidence by itself was sufficiently strong to enable the plaintiff to discharge the onus. But they took into consideration the fact that defendants on their part have not been able to indicate whose daughter Gelhi defendant No. 4 was if she was not the daughter of satyabadi as alleged by the plaintiff. Therefore, taking an over-all view of the evidence on both sides, the Courts below considered that the onus which lay on the plaintiff to prove that Gelhi is the sister of Ramchandra must be deemed to have been duly discharged.