BODALA RAVANMMA Vs. ESURU SRIRAMULU

JUDGEMENT

(1.) PLAINTIFF No. 1 is the appellant before this Court against a reversing judgment. The Suit was filed for declaration of plaintiffs title and possession over the suit schedule property and for declaration that the plaintiffs are entitled to take possession of the suit schedule lands from the receiver appointed by the Executive Magistrate. Originally the present appellant had filed this suit and later on by order dated 8.4.1980 the mother of the appellant was added as plaintiff No. 2.

(2.) CASE of the plaintiff is that the plaintiff No. 1 is the owner in possession of the suit schedule property and the plaintiff No. 2 as the mother of plaintiff No. 1 had gifted the suit schedule property to her in the year 1975. After execution of the gift deed the plaintiff No. 1 raised crops over the suit lands but the defendants threatened to remove paddy crops for which the plaintiff No. 1 initiated a proceeding under Section 144, Cr.P.C. in the Court of the Executive Magistrate which was subsequently converted to a proceeding under Section 146, Cr.P.C. and the land was attached. After attachment of the land the Executive Magistrate directed the parties to establish their rights over the suit land in the Civil Court and appointed a receiver. In view of the above, the plaintiff No. 1 had to initially file the suit for reliefs claimed.

(3.) LEARNED Munsif, Parlakhemundi on pleadings of the parties framed six issues. Issue No. 1 is whether the plaintiff No. 2 purchased the lands covered under the sale deeds dated 18.2.52 and 25.3.52 out of her stridhan funds. Issue No. 2 relates to the legality of the gift deed executed by the plaintiff No. 2 in favour of plaintiff No. 1. Issue Nos. A and B relate to possession of the parties on the suit land and Issue No. 3 relates to claim of adverse possession advanced by the defendant. While answering issue No. 1 the learned Munsif held that the plaintiff No. 2 had purchased the suit property out of her Stridhan. While answering issue No. A the learned Munsif held that though D.W. 1 was in physical possession of the suit land the legal possession was with the plaintiff No. 2 who is the original owner of the suit schedule land. So far as the gift deed is concerned, while answering issue No. 2 the learned Munsif held the same to be invalid and not binding on the defendant. So far as claim of adverse possession is concerned, while answering issue No. 3 the learned Munsif held that since the defendant was cultivating the land on behalf of the plaintiff No. 2 his possession was permissive and can never be treated as adverse possession. On the above findings, the learned Munsif decreed the suit so far as the claim of plaintiff No. 2 is concerned and dismissed the claim of the plaintiff No. 1 with regard to title claimed on the basis of gift deed. Challenging the said judgment and decree the defendant No. 1 preferred appeal before the Subordinate Judge, Parlakhemundi. The lower appellate Court on consideration of evidence on record found that the plaintiff No. 2 failed to prove her sources of income for payment of consideration in respect of the aforesaid two sale deeds and further held that the suit schedule properties were purchased from out of the money given by the husband of plaintiff No. 2. With the above findings the lower appellate Court reversed the findings of the learned Munsif to the effect that the suit schedule properties were purchased from out of Stridhan of plaintiff No. 2. The lower appellate Court further held that the suit schedule properties had been purchased benami and in view of such transaction there cannot be any possibility of claim of title by way of adverse possession. With the above finding, the appeal having been allowed, the plaintiff No. 1 is before this Court in this Second Appeal.