ANANDA CHANDRA SAHU Vs. UDAYANATH RATH

JUDGEMENT

(1.) THIS second appeal by the plaintiffs is directed against confirming decision rendered by the Addl. District judge, Ganjam Boudh, Berhampur in Title Appeal No. 69 of 1979 upholding the decision of the Munsif, Berhampur in Title Suit No. 31 of 1970 dismissing the suit - The subject -matter of the suit was a house located at Nimakhandi in Berhampur. It belonged originally to one Lakhan Fanda. The house along with other lands were sold in an auction in execution of a decree obtained against Lakhan Bhagabati and her adopted son Anirudha purchased the property and got delivery of possession. Munli the father of plaintiffs 1, 2, 4, 5, 6 and 7 and husband of plaintiff No. 3, purchased the disputed house and other lands from Bhagabati and her adopted son by registered sale deed dated 13 -9 -1963 and inducted defendant No. 1 as tenant. The first defendant did not pay rent in time and persisted in his default despite several notices issued to him. Finally, he disputed the title of the plaintiffs and claimed title in himself under, registered sale deed dated 10 -4 -1964 executed by Dolagovinda in his favour. The plaintiffs have alleged that Bhaban, Gouranga and Khetrabasi were brothers. Kanhai was the son of Bhaban. Dolagovinda was his son. Defendant No. 4 is the widow of Dolagovinda and defendants 2 3, 5, 6 and 7 are his descendants. Khetrahasi left behind his widow, Bhagabati and his son Bichitrananda who later died in 1945. So, Anirudha grandson of Dolagovinda. The suit was ,anon of title and for a further declaration that the purchase by defendant No 1 was not binding on them and for recovery of possession of the suit house and damages etc.

(2.) DEFENDANTS 1 and 4 filed separate written statements. But the stand of each of them was the same. It was pleaded by them that the real purchaser at the Court 'auction was Dolagovinda. It was pleaded that in the partition effected amongst the members -of the family of Bhaban and others, the entitlements flowing from the loan advanced by Lakhan Panda were allotted to the share of Bhaban, Since, however, the business was a joint family business, both the branches of Bhaban and Khetrabasi figured as plaintiffs and were arrayed as decree -holders. Defendant No. 1 pleaded that he was inducted by Dolagovinda as a tenant about a quarters of a century prior to the institution of the suit. He had effected substantial repairs and had electrified the house and thereafter purchased the property from Dolagovinda under registered sale deed Ext. G dated 10 -4 -1964. Dolagovinda alone having title to the property, he claimed to be the absolute owner of the house.

(3.) MR . R. K. Mohapatra, the learned counsel for the appellants, has urged that the plea of fraud on registration having neither been pleaded nor an issue being raised and the question not having been, rasied before the trial Court, it was not open to the lower appellate Court to said plea. The lower appellate Court should have, therefore on the findings recorded by it decreed the suit in part. Mr. P. K. Misra, the learned counsel for respondent No. 1, has how - ever urged that the sale deed in question was filed at a very late stage and was not even exhibited in course of the evidence of P. W. 1, the sole wit - ness examined on behalf of the plaintiffs.' But having been exhibited at the late stage of argument, defendant No. 1 was deprived of an opportunity of adducing evidence and even raising a plea by way of amendment of his pleadings. He has further urged that a plea of ouster was specifically pleaded and specific issue was raised and answered by the trial Court (issue No. 2). The lower appellate Court erred in law in not adverting to the said plea and failing to record a finding on the same issue.