KANGALU PADHAN Vs. DHANESWAR MISHRA

JUDGEMENT

(1.) - The plaintiffs are the appellants. They filed Title Suit No.13 of 1969 in the Court of the Munsif, Sonepur for declaration of their title over the suit lands and for perpetual injunction against the defendants. The following genealogy described in the plaint shows the relationship of the defendants. According to the plaintiffs, since a long time there was partition between the late Bipin (husband of defendant No.3) and Kunja (defendant No.2), the two sons of Dhaneswar (defendant No.1). Since then they have been separate in mess and property. The suit lands had fallen to the share of Bipin at the partition and he was possessing the same as his separate property in his own right, title and interest. Bipin was the Karta of the joint family consisting of himself and defendants 3, 4 and 5. They were governed by Hindu Mitakshara Law. On 11-9-1962 the said Bipin as manager of the family sold the suit lands in favour of the plaintiffs for a consideration of Rs. 800 and executed a registered deed of sale and delivered possession of the suit lands to the plaintiffs. Since then the plaintiffs have been in possession of the suit lands. The defendants have no manner of right, title and interest in the said lands. On 6-12-1968 the defendants unlawfully removed paddy crops from the suit lands on account of which the plaintiffs went to the police for help. However as the police did not help the plaintiffs they came to the Court and prayed for declaration of title and perpetual injunction.

(2.) Defendants 1 to 4 and 6 filed a joint written statement. According to the defendants, the suit lands belong to the late Madanmohan Chaini who died in the year 1957. Thereafter the suit lands devolved upon Sribatsa Misra and defendant No.6, the two sons of Madanmohan. The plaint genealogy is admitted. It is denied that the suit lands had fallen to the share of Bipin and were his separate property. The suit lands are claimed to be the joint property of Sribatsa and defendant No.6. It is denied that Bipin was acting as manager of the family. It is stated that the sale was a benami transaction, no consideration had passed under the sale deed and the suit lands had not been delivered to the plaintiffs. At the instance of the ex-Sarpanch Bipin was influenced to execute a fictitious sale deed in favour of the plaintiffs. It is denied that the plaintiffs are the owners in possession of the suit lands. It is again stated that defendant No.6 and Sribatsa are the owners in possession of the suit lands. The Guardian ad litem appointed by the Court on behalf of minor defendant No.5 separately filed a written statement adopting the written statement filed by the other defendants.

(3.) The main findings of the learned Munsif are :