TULASI SAHOO Vs. BASANTA KUMAR PRADHAN

JUDGEMENT

(1.) The Appellants, by filing this Appeal under Sec. 100 of the Code of Civil Procedure (for short, 'the Code'), have assailed the judgment and decree dtd. 18/2/1999 and 15/3/1999 respectively passed by the learned 2ndAdditional District Judge, Bhubaneswar in title Appeal No.9/51 of 1998/1997. By the same, the Appeal filed by the present Appellants (Plaintiff No.1 to 4 and 7 & 8) as well as Respondents Nos.12 to 14 (Plaintiff Nos.5, 6 & 9) under Sec. 96 of the Code has been dismissed and the judgment and decree dtd. 28/6/1997 and 17/7/1997 respectively passed by the learned Civil Judge, Junior Division, Bhubaneswar in T.S. No.28 of 1993-I have been confirmed. The Appellants (Plaintiffs), being non-suited by the Trial court where their suit stood dismissed, the move of the Appellants (Plaintiffs) by filing the First Appeal has also been unsuccessful.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

(3.) The Plaintiffs' case is that one Nidhi Sahoo had three sons, namely, Bhramarabar, Banambar and Krupasindhu; all are dead. The Plaintiff Nos.1 to 6 are the legal heirs and successors of said Krupasindhu. The Plaintiff No.1 is the wife of Krupasindhu whereas Plaintiff Nos.2 and 3 are the sons of Krupasindhu. The Plaintiff Nos.4 to 6 are the daughters of Krupasindhu. The Plaintiff Nos.7 to 9 are the sons of Banambar. Bhramarabara had a son named Dwijabara whose sons are the Defendant Nos.8 and 9 whereas Defendnt Nos.10 and 11 are his two daughters. Nidhi had in total Ac.5.47 decimals of land as it stood recorded in the record of right of the year 1927 better described in Schedule-B of the plaint. After alienation of some portions of the said land, by the time of publication of record of right in the settlement of the year 1976, Ac.4.53 decimals of land was remaining as shown in Schedule-C of the plaint. This was recorded in the name of three sons of Nidhi. Thus each was having 1/3rdinterest. In the settlement of the year 1976, the land recorded under Khata No.428 appertaining to Plot No.1565 measuring Ac.0.25 decimals found mention to have been purchased by Defendants 1 and 2 from Bhramarabar, the eldest son of Nidhi. It is alleged that said sale of joint family property by Bhramarabar is illegal as he being a member of the undivided family, had no such power to alienate of his undivided interest over the joint family property to any stranger and, therefore, it is stated that said sale is not binding on them as also others. It is stated that the properties coming to the hands of three sons from their father Nidhi had never been partitioned by metes and bounds. Said Bhramarabar, Banambar and the Plaintiff Nos.1 and 2 sold away Ac.1.11 decimals of land to Defendants 4 to 7 by registered sale deed dtd. 16/12/1972 and 22/12/1972 respectively. During consolidation operation, Ac.1.11 decimals of land were reduced to Ac.1.02 decimals. It is further stated that the sales were during the minority of Plaintiff Nos.2 and 3 when there was no legal necessity. So, they challenged the sale as hit under the provisions of Sec. 8 of Hindu Minority and Guardianship Act, 1956. During the Consolidation Operation, Chaka Khatian No.382/82 was issued in favour of the Plaintiffs and all the Defendants except Defendant No.3 and, therefore, Defendants 1 and 2 are entitled to get 1/3rdshare out of that Ac.0.25 decimals as purchased by them under registered sale deed and similarly, Defendants 4 to 7 are entitled to Ac.1.02 decimals on the strength of their purchase. The Consolidation Record of Right was jointly issued in the name of the Plaintiffs and all the Defendants except Defendant No.3 in respect of those plots bearing nos.570, 945 and 288 as shown in Schedule-D of the plaint. Thus, it is said that Defendants 1 and 2 are entitled to an equal extent of land measuring Ac.0.8 1/3rddecimals in respect of those three plots. It is stated that the Defendant Nos.1 and 2, without having any manner of right, title and interest in the land over and above Ac.81/3rd decimals have transferred Ac.0.36 decimals from Chaka No.561, Khata No.342 appertaining to plot no.945 measuring Ac.1.69 decimals by registered sale deed dtd. 27/11/1992. Therefore, the Defendant No.3 had no right, title and interest land beyond Ac.0.04 decimals as shown in Schedule-E of the plaint and the transfer in relation to Ac.0.32 decimals of land is illegal which has conferred no right, title and interest. It is, however, stated that the Defendants 4 to 7 have unauthorizedly raised a shopping centre building for commercial purpose over the land under Consolidation Chaka No.561 over an area of Ac.0.06 decimals in plot no.945 and are in possession of Ac.0.49 decimals in that very plot. Having pleaded all these above, the Plaintiffs filed the suit seeking the relief of declaring the joint ownership in respect of suit properties along with the Defendants except Defendant No.3 and for issuance of injunction against Defendants 3 to 7.