CHAKRADHAR SAHU Vs. JAGU NAYAK

JUDGEMENT

(1.) This appeal has been admitted on the following substantial questions of law:

(2.) The case of the Plaintiff is that he has a share in the property constituting an area Ac. 45.00 of land purchased by registered sale deed dated 17.12.1955 from one Narayan Birendra Samanta & Ratnamali Jena of Rilla Kujanga, P.S. Tirtol, Dist. Cuttack to an extent of Ac. 4.50 decimals & is in possession thereon. The Defendant No. 1 declared to have purchased the suit property on 15.10.1988 from the Defendant No. 2-Bishnu Charan Nayak, who alleged to have purchased the said land from the Plaintiff. The Defendant No. 1 had shown the sale deed executed in his favour by the Defendant No. 2 from which the Plaintiff came to know that his property has been included in the sale deed & it is mentioned in the sale deed that Jagu Nayak had sold the land to the Defendant No. 2, i.e. the vendor of Defendant. No. 1 .The Plaintiff enquired from the Defendant No. 2 about the matter & he showed the sale deed dated 15.10.1984 alleged to have been executed by one Jagu Nayak. It is further alleged by the Plaintiff that imaginary boundaries have been mentioned with regard to the property of the Plaintiff constituting an area Ac. 4.50 & the status of the land has been mentioned as Anabadi whereas the actual boundary is as mentioned in para-5 of the plaint. The Plaintiff has specifically stated that he has never sold the suit property or any other land to the Defendant No. 2 & it is evident that some other persons set up as Jagu Naik (the name of the Plaintiff) have created the said sale deed in respect of the suit property & therefore, neither. The Defendant No. 2 nor Defendant No. 1 has acquired any title in respect of the suit property. As the original sale deed dated 15.10.1984 which was called for from the Defendant No. 2 was not produced by him, a certified copy thereof was marked as Ext. 1 on behalf of the Plaintiff. The sale deed by which the Defendant No. 1 claimed to have purchased the property from the Defendant No. 2 has been marked as Ext. A in the suit The Trial Court on the pleadings of the parties framed as many as seven issues out of which issue No. 5 was to the effect that whether the sale deeds dated 15.10.1984 & 13.10.1987 are valid genuine & legal. Answering the above Issue, the Trial Court has stated in the Judgment that it is not disputed that the burden lies on the Defendants who got the benefit under the sale deed to prove that the Plaintiff executed the sale deed dated 15.10.1984 in favour of Defendant No. 2 Further, the Trial Court found that the sale deed dated 13.10.1987 by which the Defendant No. 2 has sold the suit property to the Defendant No. 1 along with other properties marked as Ext. A, it is revealed that some lands of village Banito were sold by the Defendant No. 2 & sale deed was registered at Tirtol. Defendant No. 2 has been examined who stated that he has no land in Banito. The Record of Rights marked as Ext. 4 discloses that the land sold under the sale deed Ext. A by Defendant No. 2 in favour of Defendant No. 1 was not recorded in the name of the Defendant No. 2. The Trial Court relying upon different case laws concluded that the sale deed under Ext. A is an invalid sale deed. It also found that the purported sale deed executed by the Plaintiff in favour of Defendant No. 2 is also invalid & ultimately declared the said sale deed as void & decreed the, Plaintiff's suit The Defendant carried an appeal against the said Judgment in Title Appeal No. 54 of 1995. The Appellate Court i.e. the Addl. District Judge, Jagatsinghpur by Judgment dated 31.10.1998 confirmed the Judgment of the Trial Court by vividly discussing all the points raised before him.

(3.) With regard to the substantial questions of law framed in this appeal, this Court finds that the said questions do not arise for consideration in this appeal as the Plaintiff has not alleged any fraud to have been committed with regard to the sale deed in question but has specifically pleaded that he had not executed the sale deed with, regard to the suit property in favour of the Defendant No. 2 & therefore, the Defendant No. 2 had no authority to sale the same to the Defendant No. 1 by virtue of the subsequent sale deed. The Courts below are, therefore, correct in holding that the burden lies on the Defendants to show as to how the title over the disputed property devolved upon them as it was admitted that the disputed property belonged to the Plaintiff. I, therefore, find no error to have been committed by the Courts below in decreeing the suit of the Plaintiff & the substantial questions of law on which the second appeal has been admitted do not arise for determination in this appeal. The second appeal is dismissed being devoid of merit, but in the circumstances, without cost.