GANGADHAR BEHERA Vs. SURENDRA BARIK

JUDGEMENT

(1.) THE unsuccessful plaintiffs are in appeal against the dismissal of their suit for declaration of their title and possession. In order to appreciate the respective contention of both parties we, however, find it appropriate to quote the admitted genealogy placed in the record :

(2.) PLAINTIFFS ' case in short is that on the death of Sankari on 28.5.1960 Chaturbhuja, son of the sister of Dinabandhu acquired the property by survivorship. Therefore, he applied for mutation of his name in place of Sankari. Defendant No. 1 raised objection to the same on the ground that Sankari bequeathed all her properties in favour of defendants 1 to 4 by making him the executor under a registered will. The prayer for mutation by Chaturbhuja was, however, refused by the Mutation Officer who directed the parties to establish their title in Civil Court. Thereupon defendant No. 1 filed a suit being T.S. No. 66/1966 claiming his right along with defendants 2 to 4 in the year 1966 on the basis of the will. The learned trial Court after considering the oral and documentary evidence and also the submission advanced before him held that the will was not genuine. Thereafter Chaturbhuja sold the disputed property to the plaintiffs on 14.11.1969. As there was likelihood of breach of peace and tranquility over the disputed property, defendant No. 1 filed a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') in which the preliminary order was proclaimed on 26.10.1970 and the disputed property being attached remained in possession of the receiver as 'cistodia legis'. In the final order dated 10.11.1972 the possession of defendant No. 1 was declared and, therefore, the plaintiffs filed the suit on 25.4.1973 for declaration of their right, title and recovery of possession along with the usufructs for the period of attachment.

(3.) BOTH parties participated in trial and placed their oral and documentary evidence as well. The plaintiffs examined eight witnesses and proved documents marked Exts. 1 to 19. Defendant No. 1 examined six witnesses and also proved some documents marked Exts. A to R. The learned trial Court considering the evidence on record was, however, inclined to hold that Khetri was the sister of Dinabandhu and as such Chaturbhuja was his sister's son. As a last male successor Chaturbhuja succeeded to the estate of Sankari, widow of Dinabandhu. But the trial Court held that since the plaintiffs failed to establish the subsisting right within 12 years from the date of the suit, therefore, they were non suited for claiming the suit properties. The trial Court also disbelieved that Chaturbhuja possessed the land through bhag tenant for a period of two years after the death of Sankari. The trial Court has, therefore, dismissed the suit as barred by limitation.