RAGHUNATH SAHU Vs. KATHIA DEVI AND ORS.

JUDGEMENT

(1.) IN S.A. No. 73/67, Defendant No. 1 in T.S. No. 177/61 is the Appellant against the judgment of the Subordinate Judge, Jajpur confirming the trial Court 's decision decreeing the suit instituted by Kathia Devi and Kuturi Devi by declaring their right, title and interest in respect of the suit land and confirming their possession to the same land and declaring the sale deed dated 23 -9 -1961 executed by Defendant No. 2 in favour of Defendant No. 1 as invalid. In S.S. No. 77/1967, Plaintiff Laxmi Bewa in T.S. No. 47/62 is the Appellant against the judgment of the Subordinate Judge, Jajpur confirming the decision of the trial Court dismissing the Plaintiff 's suit for setting aside an ex parte decree dated 20.3.1956 passed in T.S. No. 77/65. On the agreement of the counsel appearing on behalf of both the parties these two Second Appeals are taken up together for hearing, and they both will be disposed of by this one judgment.

(2.) THE undisputed facts which are common and relevant for both the cases may be stated as follows : Darsani Kundu was admittedly the owner of the disputed property. After his death his widow Chanda Bewa (Defendant No. 1 in the suit relating to S.A. No. 77/67) gifted away Acs. 15.97 of land by the gift deed Ext. A dated 15.1.1945 in favour of Ram Chandra her son -in -law, who married Chanda 's daughter Rani. Rani predeceased Chanda, and 80 Ram Chandra was again given in marriage to Laxmi, the Plaintiff in the suit relating to S.A. No. 77/67, and Laxmi and Ram Chandra continued to remain in the house of Chanda. Rani, the first wife of Ram Chandra, left two daughters Kathia and Kuturi, who are the Plaintiffs in T.S. No. 177/67 out of which S.A. No. 73/77 arises. Chanda again by two deeds of gift Exs. 1 and 2 dated 28.8.61 gifted away 37 acres of land in favour of the two sisters Kathia and Kuturi, the daughters of Rani, the first wife of Ram Chandra. Prior to this gift in favour of Kathia and Kuturi, the reversioners of the above named Darsani, the original owner of the property, filed T. S. No. 34(45 against the above mentioned Ram Chandra, Chanda, Kathia and Kuturi for a declaration that the aforesaid deed of gift (Ex. A) in favour of Ram Chandra was a nominal one and was inoperative after the death of Chanda. All the above named 'Persons contested the suit, and the suit was decreed in favour of the 'Plaintiffs in that suit as per judgment Ext. 6 dated 28.9 -1946. Thereafter Chanda brought T.S. No. 77/1955 against the above named Laxmi, for a declaration that the above deed of gift, Ext. A executed by her in favour of Ram Chandra was a nominal one. That suit was decreed ex parte in favour of Chanda, the Plaintiff as per judgment Ex. 10 dated 20.3.1956. Laxmi, the 2nd wife of Ram Chandra filed T.S. No. 47/62 (out of which S.A. No. 77/67 arises) for setting aside the said judgment Ext. 10 and the decree Ex. 11 passed in T.S. No. 77/55, on the ground that the decision in T.S. No. 7 7/55 was obtained by Chanda by practising fraud., This suit has been dismissed and the said (decision has been confirmed in appeal. The above named Kathia and Kuturi, two daughters of Rani, the first wife of Ram Chandra, filed T.S. No. 177/61 out of which S.A. No. 73/67 arises) against the above named Laxmi and the purchaser of the property from her, for a declaration that the Plaintiffs got right, title and interest in the suit land, and the sale deed executed by Laxmi in favour of the purchaser is invalid and inoperative and also for confirmation and/or recovery of possession.

(3.) MR . Mohanty, the learned Counsel for the Respondents in both the Second Appeals, refuted the above contention of Mr. Dasgupta, and urges that T.S. No. 47, 62 instituted by Laxmi, (Appellant in S.A. No. 77 (67) was for setting aside the judgment in T. S. No. 77/55 on the only ground of fraud that Laxmi was prevented by Chanda from contesting the suit on the misrepresentation, that the suit would be compromised and Laxmi would continue to remain in possession of the property as before, and on such representation her thumb impression was taken on a blank paper, but Chanda never filed any such compromise in that suit, and by this fraud Chanda obtained an ex parte decree against Laxmi. Mr. Mohanty contends that as this was the only item of fraud specifically alleged by Laxmi, the Plaintiff, in her suit she at this stage cannot be allowed to challenge the previous judgment on another item of fraud which was not taken by her in the suit. In support of his contention Mr. Mohanty cites the decision in Madholal Damlal v. Gufrabi : : A.I.R. 1951 Nag. 194, the relevant portion of which may profitably be quoted;