DASARATH BEHERA Vs. KATAI DEI

JUDGEMENT

(1.) The defendants have filed this appeal assailing the judgment and decree of the Subordinate Judge, Jajpur decreeing the suit. The respondents filed Title Suit No. 5 of 1978 in the Court of the Subordinate Judge, Jajpur to declare their right, title and interest to the lands described in Schedule 'A' to the plaint; to declare that the appellants 1 to 8 have acquired no title to the 'A' Schedule land on the strength of their purchase from Laxmi Bewa and Kamala Dei; and to confirm respondents possession over the said land or in the alternative if it is found that they have been dispossessed, to direct possession of the land to be delivered to them and for other consequential reliefs.

(2.) The case of the plaintiffs, shorn of unnecessary details, was that, the disputed lands belonged to Darsani alias Darsan Kunda, the maternal grandfather of the plaintiffs. He had only a daughter Rani by name, who was given in marriage to one Rama Chandra Sahu. Rama Chandra Sahu lived in the house of Darsani Kunda as his illatom son-in-law. Rama Chandra and Rani were blessed with three issues, the two plaintiffs and a son, who is dead. When Darsani died in 1943 his widow Chanda wanted that Rama Chandra who had in the meantime lost his wife (Rani) and his son, should continue to live in her house. With that end in view Thanda brought Laxmi (defendant No. 9) from a poor family and got her married with Rama Chandra and both Rama Chandra and Laxmi lived in Chanda' house. Chanda had executed a nominal deed of gift on 15-1-45 in respect of Ac. 15.00 and odd of land including the suit land and had also got the name of Rama Chandra mutated in respect of the said property just to appease the sentiment of Rama Chandra and Laxmi' father. According to the plaintiffs that deed of gift was not acted upon; the document was kept by Chanda who paid rent for the land and continued to possess it in her own right. The reversioners of Darsan Kunda filed Title Suit No. 34 of 1945 in the Court of the Subordinate Judge, Cuttack against Chanda and Rama Chandra to declare the deed of gift invalid and inoperative. The suit was contested by Chanda and Rama Chandra taking the stand, inter alia, that the deed of gift was a nominal one. The deed of gift was declared invalid and inoperative against the reversioners of Darsana Kunda. Rama Chandra died in 1953 leaving his widow Laxmi and a daughter Kamala. On the ill advise of some people who were out to create mischief in the family Laxmi started quarrelling with the plaintiffs and their respective husbands who had been living with Chanda after their marriage. To avoid frequent quarrels in the family and to bring about peace amongst its members, Chandra shifted Laxmi and his daughter Kamala to another appartment (Khanja) in the house. The plaintiffs learnt from Chanda that Laxmi had stealthily removed the original deed of gift and some other documents from the house while shifting. Laxmi at the instigation of some people who were inimically disposed towards Chanda, out and removed the crops grown by Chanda from Ac. 0.81 decimals of land covered under the deed of gift registered in the name of Rama Chandra Sahu. Chanda filed Title Suit No. 77 of 1955 in the Court of the Munsif, Jajpur against Laxmi and her supporters for declaration of her right, title and interest to the land and for recovery of damages. The said suit was decreed. Chanda out of her love and affection for the plaintiffs, executed a separate deed of gift in their favour on 28-8-61 in respect of Ac. 38.00 of land including Ac. 15.97 dec. of land covered by the deed of gift executed by her (Chanda) in favour of Rama Chandra which had been declared invalid and inoperative in Title Suit No. 34 of 1945. Possession of the property was delivered to the plaintiffs and they were in possession and enjoyment of the same. The request to transfer the land in her favour having been turned down by Chanda, Laxmi became enraged and illegally, unauthorisedly, collusively and without consideration executed sale deeds in respect of Chanda' land in favour of different persons including the defendants. The plaintiffs instituted Title Suit No. 177 of 1961 in the Court of the Munsif, Jajpur against one of the transferees Kartik and Laxmi and Kamala for declaration of title and confirmation of possession in respect of the lands conveyed to Kartik. The suit was keenly contested by the vendees. The suit was decreed, the plaintiffs' title to the suit land was declared and the deed of gift was declared as a nominal and inoperative document. Title Suit No. 47 of 1962 of the Court of the Munsif, Jajpur filed by Laxmi for declaration of her title on the strength of the deed of gift executed in the name of her husband Ramchandra, was dismissed. Title Appeal No. 118/7 of 1964/1966 and Title Appeal No. 119/8 of 1964/1966 filed by Laxmi were also dismissed. Second Appeal Nos. 73 and 77 of 1967 preferred by Laxmi against the decisions of the first Appellate Court was also dismissed by this Court. During pendency of Title Suit No. 177/61, Laxmi executed series of sale deeds fraudulently and collusively and without consideration in order to harass the plaintiffs. One such sale deed was in respect of Schedule 'A' land, executed by her on 29-5-1962 in favour of Ankura Behera, grandfather of defendants 1 to 4 and in the names of defendants 5 to 8. The plaintiffs contend that the sale deeds, like the sale deed which was the subject matter of Title Suit No. 177 of 1961 were also declared as invalid and inoperative, inasmuch as, Laxmi and Kamala had no manner of right and title to the disputed properties and they were never in possession of it. As such, defendants 1 to 8 derived no title and possession to the disputed properties by their purchases from Laxmi and Kamala. They were also not in possession of the said land. Since the sale deeds cast clouds over the plaintiffs' right, title and interest to the properties in question, they filed the suit seeking the reliefs noted earlier.

(3.) Defendants 1 to 7 in their joint written statement denied the claim of the plaintiffs over the suit properties. They refused the material allegations in the plaint. According to them the gift deed dated 15-1-45 and the mutation effected on the basis of that document were not nominal; the gift was acted upon and the properties were in possession of Laxmi and Kamala. It was the case of the defendants that according to the family custom Rama Chandra who was illatom son-in-law and was living in the family was entitled to succeed to the property of the father-in-law Darsani Kunda and for recognition of that right, the deed of gift was executed in his favour by Darsani Kunda' widow, Chanda. It was the further case of the defendants that the 'A' Schedule lands along with other lands totalling No. 15.97 dec. were in possession of Rama Chandra in his own right openly, peacefully, continuously and adversely since 1944 till his death. After his death Laxmi possessed the same till she transferred the suit land in 1962 to Ankur and defendants 5 to 8, whereafter the defendants possessed the property. The defendants contended that they have perfected their right, title and interest to the suit lands by adverse possession.