P RAMMURTY Vs. A KALPO PATRA

JUDGEMENT

(1.) THIS appeal by defendant-1 is directed against the appellate decree passed by the Additional District Judge, Ganjam, allowing the plaintiff's claim for declaration of title and recovery of possession in respect of some of the suit plots.

(2.) THE disputed plots, (except plot No. 396/ 9) along with some other plots such as plot Nos. 406/6 and 406/19 were allotted to the defendant No. 5 by a compromise decree (Ext. L) of the court of the Subordinate Judge of Berhampur. Defendant No. 5 on 12-1-49 sold the above undisputed two plots along with some other plots comprising an area of one acre to defendant-1 for a consideration of rs. 600/- under a registered sale deed, Ext. A. Defendant-5, however, had no interest in the other plots sold along with the above two plots, nor did they form part of Ext. L. The suit plots however (excepting plot No. 396/9) were allotted to defendant No. 5 in the said decree. Again on 11-4-51 defendant No. 5 sold the suit plots along with plot No. 396/9 comprising an area of 90 decimals to plaintiff for a consideration of Rs. 300/under ext. 1. Plot No. 396/9 had however been previously sold by defendant-3 (husband of defendant-5) on 23-6-48 in favour of defendant No. 6, daughter of defendant No. 1. On 12-7-51 defendant-5 executed and registered a deed of rectification (Ext. B) saying that the plots other than plot Nos. 406/6 and 406/19 were noted by mistake in the sale-deed, Ext. A in place of the suit-plots. According to her, she really intended to sell the suit plots under Ext. 1 but some other plots were wrongly entered in Ext. A and in fact in respect of those other plots she is not the real owner. Accordingly on 2-8-51 she cancelled the sale-deed (Ext. 1) executed in favour of the plaintiff by a deed of cancellation (Ext. C) on the ground that no consideration did ever pass under Ext. 1 and there was never any delivery of possession and the property was not intended or sale to the plaintiff as the same was already sold to defendant I and possession delivered in pursuance of the sale.

(3.) THE plaintiff and defendant No. 1 both claimed to be in possession of the suit plots which gave rise to a proceeding under Section 145, Cr. P. C. (Misc. Case No. 30/51 ). The learned Magistrate by his order dated 22-5-52 declared possession of defendant-1 and restrained the plaintiff from interfering with his possession until evicted in due coarse of law. The plaintiff, therefore, has filed the present suit on 5-0-52 basing his claim on sale deed, Ext. 1, against defendants 1 to 4, defendants Nos. 2 to 4 being tenants in respect of the suit land for declaration of his title and recovery of possession and also for mesne profits including a sum of rs. 60/-which was kept in deposit in the Section 145 proceeding in the Court of the Magistrate, First Class, Ghumsur.