NATABAR NAYAK Vs. KAMA CHARAN NAYAK

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. 5/1/2002 and 16/1/2002 passed by the learned Additional District Judge, Kendrapara in Title Appeal No.16 of 1995. By the same, the Appeal filed by these Appellants, as the unsuccessful Defendants in challenging the judgment and decree dtd. 25/2/1995 and 28/3/1995 respectively passed by the learned Civil Judge, Senior Division, Kendrapara in Title Suit No.45 of 1988, has been dismissed whereby the judgment and decree passed by the Trial Court in decreeing the suit filed by the Respondent No.1 as the Plaintiff declaring his right, title and interest and possession over the property described in Schedule-Gha of the plaint and holding these Appellants (Defendants) as having no manner of right, title and interest over the same, having not so acquired by virtue of their purchase under the registered sale deed dtd. 26/10/1981, have been confirmed.

(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 Plaintiff's case is that the property described in Schedule-Ka of the plaint was the ancestral property of his father, namely, Sricharan Nayak and it was recorded in his name in C.S. ROR. The Plaintiff was serving at Calcutta and Bhagalpur since 43 years prior to institution of the suit and used to regularly remit money to his father. It is stated that out of the said funds provided by the Plaintiff, his father acquired the property in Schedule-Kha in his name. The properties described in Schedule-Ga, which are movables are also stated to have been purchased by spending the money which was being sent by the Plaintiff. It is next stated that the property described in Schedule-Kha of the plaint was blended with Schedule-Ka properties being thrown to the common stock and properties of both the schedules, those were being treated as joint family properties. The dissension having arisen between the Plaintiff and Defendant No.1, who are the brothers and son of Sricharan in the year 1971, they began to live in separate mess having separate residence. In the presence of village gentlemen, partition of Schedule-Ka and Kha property had taken place. It was done amicably by metes and bounds wherein Schedule-Gha property fell to the share of the Plaintiff and Schedule-Una properties fell to the share of Defendant No.1. On 9/5/1975, in acknowledgement of the said amicable partition, which had taken place in the year 1971 one 'Kachha Farda' had been prepared wherein their father and other gentlemen signed. It is stated that since the parties possessed their properties, as allotted to them in their share, the possession was separate as of their share. Schedule-Ga properties remained with their parents towards the maintenance of the parents by the two brothers in turn. The Plaintiff, when returned to the village, the Defendants 2 and 5 claiming to have purchased the same lands from his father and began to interfere with his possession over Schedule-Ga properties. It was then, on enquiry, came to be known that Defendant No.1 fraudulently obtained a sale deed in the name of his sons, i.e., Defendants 2 to 5 from the father of the Plaintiff, namely Sricharan. It was registered at Cuttack instead of Marsaghai. It is stated that said sale was without any consideration to serve the mischievous purpose of depriving of the Plaintiff of his legitimate claim and share.