PREMALATA SAHOO Vs. RANJITA JENA

JUDGEMENT

(1.) Mr. Bhuyan, learned advocate appears on behalf of appellant. He submits, his clients were plaintiffs at trial and suffered concurring judgments of dismissal of their suit. His clients are claiming under defendant no.3 in respect of 8 annas share in 'B' schedule property. Said 'B' schedule property was sold away by defendant no.3 to defendant nos.1 and 2. There was fraud practiced on defendant no.3 by the other defendants in causing the sale. As such, the property not having been partitioned and his clients having coparcenary interest, they had claimed cancellation of the sale deed. Alternatively, right to repurchase. The appeal should be admitted on appropriate question of law formulated in context of pleading by defendant no.3 in the written statement, jointly filed by him and defendant no.5.

(2.) Mr. Bhuyan relies on recent judgment of the Supreme Court in Vineeta Sharma vs. Rakesh Sharma, reported in (2020) 9 SCC 1, paragraphs 137 (137.1 to 137.4). He submits, the position in law on earlier interpretation by said Court stood overruled thereby.

(3.) Mr. Baug, learned advocate appears on behalf of defendant nos.1 and 2 and submits, there is no substantial question of law involved in the appeal. Defendant no.3 was not called to the box to prove any contention he may have made in the written statement jointly filed by him and defendant no.5. Pleading alone cannot be relied upon without proof in evidence. As such, defendant no.3 being owner of 8 annas share in 'B' schedule property, sold away same to his clients. Since it is joint property, the other co-sharers having 8 annas share confirmed the sale. The sale was made by the joint family, of a part of joint family property. He supports the trial Court judgment where it has been discussed that no question of presumption under Sec. 4 of Partition Act, 1893 can arise because his clients had not filed for partition.