ISWAR DAS Vs. MURALIDHAR RAI

JUDGEMENT

(1.) The plaintiff is the appellant before this Court. He filed Title Suit No. 55/ 7 of 1978 / 76 for a declaration that he has the right, title and interest in the suit house No. 94, in Ward No. 6 situated on Plot No. 700 of Khata No. 58 of Kantabanjhi Nazul and Defendants 2, 3 and 4 are trespassers and are liable for eviction. In the alternative, the plaintiff prayed for a decree for refund of the consideration money with interest from defendant No. 1 that was paid by the plaintiff to deft. No. 1 towards the full value of the said property and for a further declaration that defendants Nos. 3 and 4 are liable to pay him the monthly rent at the rate of Rs. 60/- per month for the period of their occupation under the plaintiff with effect from 20-6-1967.

(2.) The case of the plaintiff is that defendant No. 1 wanted to sell the suit house which the plaintiff agreed to purchase and on 15-6-67 there was an agreement between the parties fixing the consideration at Rs.10,000/-, on which date the plaintiff paid Rs.1000/- to deft. No. 1 in part performance of the contract. On the date of the aforesaid agreement, the suit house was under occupation of monthly tenants, namely, deft. Nos. 3 and 4 who are related with each other as father and son. It was decided by the parties that the registration of the document would be made before the Sub-Registrar, Titilagarh on 20-6-67. On 19-6-67 deft. No. 1 made a formal delivery of possession and since defts. Nos. 3 and 4 were occupying most to the premises they agreed in presence of the partition that they would be treated as tenants under the plaintiff and pay him rent to which both the plaintiff and deft. No. 1 agreed. Only a servant room which was kept vacant was delivered to the plaintiff on 19-6-67. On 20-5-67 a deed of sale was executed between the deft. No. 1 and the plaintiff but it could not be registered as deft. No. 1 before registration, left the premises of the Sub-Registrar's office on the pretext of taking tea and never returned. However, on 21-8-67 according to the plaintiff, deft No. 1 presented the sale deed after receiving the balance consideration of Rs. 9,000/- from the plaintiff and the sale deed was registered bearing Registration No. 2636 of 1967. It is the further allegation of the plaintiff that he got his name mutated in the municipal records and is paying the Municipal Tax thereafter. It is contended by the plaintiff, however, that on 22-6-67 deft No. 1 executed another sale deed in respect of the said property in favour of deft. No. 2 who is the brother's wife of deft. No. 3, on the ill-advice of defts. Nos. 3 and 4. No consideration actually passed and no possession of the property was ever transferred to the said Deft. No. 2 and according to the plaintiff the sale deed dated 22-6-67 was a sham transaction and was not acted upon. However, Deft. No. 1 later on 14-8-67 by a deed No. 2067 has cancelled the sale deed dt.22-6-67 made in favour of Deft No. 2. In the suit, the plaintiff has made Defts. Nos. 2, 3 and 4 parties apart from Deft. No. 1.

(3.) Deft No. 1 did not file any written statement and died during pendency of the suit. His legal representatives Defts. Nos. 1 (a) to 1(e) were substituted in his place. Deft. No. 1(a), however, is the sole contesting defendant. He filed his written statement and examined himself is D.W. No. 1. No other witnesses were examined on his behalf. Defts. Nos. 2, 3 and 4 filed their joint written statement but did not examine any witness on their behalf. The plaintiff examined five witnesses of whom P.W. 1 was the plaintiff himself, P.W. 2 was a witness to the agreement dated 15-6-1967 as well as to the execution of the sale deed dated 20-6-1967, P.W. 4 was the scribe, P.W. 3 was a clerk of the Registration office, Belangir who only produced the document to prove registration of the impugned sale deed and P.W. 5 was a clerk of the Notified Area Council who proved the mutation in favour of the plaintiff in respect of the suit house and the payment of tax by the plaintiff for the said house. Deft. No. 1(a) in his written statement alleged that the suit plot was the ancestral joint family property in the hands of defendant No. 1 and the sale by Deft. No. 1 of the suit house did not bind him. He denied any agreement to have entered into between Deft. No. 1 and plaintiff and according to him, no consideration passed from the plaintiff to the Deft. No. 1 for the suit house. According to him, the sale was otherwise void as it was hit by S. 23 of the Orissa Land Reforms Act, prior permission for sale having not been obtained from the Revenue Officer. This defendant also denied the sale of the house by Deft. No. 1 in favour of Deft. No. 2.