MAHADEV GHOSE Vs. ANTARJYAMI DAS

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant in this Second Appeal, preferred against the decision of the Subordinate Judge. Berhampur in Title Appeal No. 203 of 1965gdc reversing the decision of the Munsil Berhampur in Title Suit No. 221 of 1963, dismissing the plaintiff's suit for declaration of their title to and recovery of possession of the suit lands and for mesne profits and for an order to withdraw a sum of Rs. 400/- kept in deposit towards the price of the crop of the suit lands when the suit lands were involved in a proceeding under Section 145. Cr. P. C.

(2.) THE plaintiff's suit is mostly on the following averments: the plaintiff No. 1 is the adopted son of Agadhu and the plaintiff No. 2 is the widow of the said Asadhu. The suit lands are Durmila Inam lands under Survey No. 202. The father of the plaintiff No. 1 purchased the suit lands from defendants 1 to 3 the original owners by an unregistered sale deed (Ex. 1) dated 20-1-45. The said document (Ex. 1) was not registered as the parties were very close relations of each other. After the execution of Ext. 1. Agadhu. father of the plaintiff No. 1, possessed the suit lands for some time, and thereafter he got the same cultivated through one Natabar Das. In that state of affair Agadhu died in or about 1950, after which plaintiffs 1 and 2 continued to possess the suit lands through the above named Natabar and thereafter through one Basu Das. and Sama Ghose (P. W. 31. the brother of the wife of the defendant No. 1. In 1961 trouble started between the parties as the defendant No. 1 started creating disturbance in the possession of the plaintiffs followed by a proceeding under Section 144. Cr. P. C. . later converted into one under Section 145. Cr. P. C. . As the said proceeding terminated in favour of the defendant No. 1 the plaintiffs were forced to file this suit. It was further averred in the plaint that the surt lands were Durmila service Inam lands and were given for rendering Paik service to the ex-intermediary of Khallikote estate, which was abolished in or about the year 1953. After vesting of the estate, the plaintiff No. 1 filed petitions. Exts. 5 and 5/a, under Section 8 (3 ). Orissa Abolition Act. 1951 before the Estate Abolition Collector for settling the lands with him and on those petitions, after due proclamation (Ext. 6) the lands were finally settled and rent assessed in favour of plaintiff No. 1, as per order of the collector (Ext. 7) dated 7-1-60. This settlement as per Ext. 7 is one of the modes of acquisition of title to the suit property, and also proves the fact that the plaintiffs acquired title suit lands at that time. It is also urged in the plaint that the plaintiffs acquired title to the suit lands by adverse possession by long and continued possession of the suit property for over 12 years after execution of Ext. 1 on 20-1-45.

(3.) THE defendant No. 1 alone entered contest in the suit. The averments in his written statement are to the effect that the suit properties originally belonged to the three defendants, but the defendants. 2 and 3 relinquished their interest in the suit lands in favour of the defendant No. 1 and thus the defendant No. 1, had been in exclusive possession of the suit lands since then. The plaintiff's plea of possession and of acquiring title by adverse possession is denied on the above facts. The above mentioned conveyance of the property by Ext. 1 was denied as a fact and contested on legal grounds. It is averred in the written statement that late Affadhu being a close relation of the defendant No. 1, was managing the affairs of the defendants, and in such state Asadhu might have taken the signatures of these defendants on a Piece of blank paper which was subsequently converted into Ext. 1. With regard to the plaintiff's averment regarding the aforesaid proceeding under the Estates Abolition Act and the settlement as per Ext. 7 in favour of plaintiff No. 1, it is stated that the entire proceeding and the said settlement are all invalid in view of the fact that the estate actually vested in 1961 and not in 1953, as alleged by the plaintiffs. After the vesting of the estate in 1961 the defendant No. 1 got a notice (Ext. D) dated 7-8-62 requiring him to submit the necessary papers relating to the suit lands and later the defendant No. 1 was rightly assessed to rent with respect to the suit lands. Accordingly, it is asserted that as this assessment was done at the proper time after the vesting of the estate the plaintiffs cannot question the title or possession of this defendant in respect to the suit lands. It is also averred that the plaintiff No. 1 is not the adopted son of the above named late Agadhu and hence has no right to institute the suit. Defendant No. 3 more or less adopted the pleadings of defendant No. 1. Defendant No. 2 has been set ex parte.