BHAGIRATHI ROUT Vs. GOPAL CHARAN ROUT

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant against a reversing judgment. Plaintiff-respondent No. 1 filed the suit for declaration of title to and confirmation of possession of 24 decimals constituting the western half of plot No. 666 after declaring that the sale deed executed by defendant No. 3 in favour of defendant no. 1 is not valid and binding. The facts, in brief, are as follows:-- Plot No. 666 containing an area of 48 decimals belonged to and was recorded in the names of deceased Hadu Behera and Banchha Behera (defendant No. 3 ). Defendant No. 2. son of Hadu succeeded to his father's share. In a partition, defendant No. 2 got the western half, while defendant No. 3 got the eastern half. Plaintiff purchased the suit land from defendant No. 2 by a sale deed on 6-9-1952 and came into possession. As defendant No. 1 threatened to dispossess him on the basis of a sale deed executed by defendant No. 3 in his favour in 1940, he instituted the suit. Defendant No. 1 resisted the plaintiff's suit on the ground that Hadu and defendant No. 3 constituted a joint family possessing plot No. 666. On Hadu's death, defendant No. 3 as Karta of the joint family sold the entire plot to him for consideration under a sale deed dated 24-10-1940 to meet certain legal necessities of the family and since then he has been in possession of the same in assertion of his own right. Defendant No. 3 who entered appearance in the trial court pleaded that the sale deed in favour of defendant No. 1 on 24-10-1940 was a benami document and no title passed thereunder. The trial court dismissed the plaintiff's suit on the following findings; (1) The suit plot was the property of the joint family of Hadu and defendant No. 3; (2) on Hadu's death, defendant No. 3 became the Karta of the family; (3) defendant No. 3 executed the sale deed in favour of defendant No. 1 on 24-10-1940 for consideration to meet legal necessities of the family and delivered possession of the land to the purchaser (4)plaintiff, defendants Nos. 2 and 3 are not in possession of the suit land at any time since the date of sale in favour of defendant No. 1 in 1940; (5) the sale deed (Ex. A/2) executed by defendant No. 3 in favour of defendant No. 1 is genuine and not benami and (6) the suit is barred by limitation. On appeal by the plaintiff, the lower appellate court, while confirming the other findings of the trial court, held that the sale by defendant No. 3 in favour of defendant No. 1 in 1940 was not for legal necessity, and as such, not binding on defendant No. 2, the plaintiff's vendor and though defendant No. 1 is in possession of the entire plot, as ouster has not been pleaded, the claim of plaintiff to the extent of his share is not barred by limitation. Accordingly, the appeal was allowed and the plaintiff's suit decreed in part to the extent of his share.

(2.) THE findings of the courts below that Hadu and defendant No. 3 constituted a joint family possessing the suit plot as joint family property; that on Hadu's death, defendant No. 3 became the Karta of the joint family and in that capacity made the alienation in favour of defendant No. 1 in 1940 under Ex. A/2; that since the date of purchase under Ex. A/2, defendant No. 1 remained in possession and that the alienation under Ex. A/2 is not for legal necessity are findings of fact, and as such, not assailable in second appeal.

(3.) LEARNED Counsel for appellant assails the judgment of the lower appellate court on the following grounds: Firstly, it is contended that an alienation by a father or manager of a joint family without legal necessity being voidable at the option of other coparceners, the suit not having been filed within twelve years from the date of alienation is barred. Secondly, though limitation for filing a suit to avoid the alienation may not commence where the alienee does not take possession, in this case as defendant No. 1 has been in possession from the date of sale, the suit is barred, i. e. , where the alienee has come into possession. Article 144 of the limitation Act will apply and the suit has to be filed within twelve years from the date the alienee takes possession. Lastly, it is stated that the lower appellate court has committed an error in rejecting the claim of adverse possession on the ground that ouster has not been pleaded. For respondent No. 1. it is contended that an alienation of joint family property by the Karta without legal necessity being void ab initio, there is no necessity for filing a suit by the non-alienating coparcener to avoid the same. Necessarily, therefore, the question of limitation will not arise. Secondly, it is urged that in such a case, the alienee will be deemed to be a cosharer with the non-alienating coparcener and unless ouster is proved, the alienee cannot claim any title by adverse possession. In the present case, as the partition between defendant Nos. 2 and 3 took place only in 1952, the suit having been filed within twelve years from that date is within tune.