MAHESWAR RANA Vs. KANCHAN BHOI

JUDGEMENT

(1.) The first appeal and the writ application were heard together and are being disposed of by this common judgment.

(2.) Defendants 1 and 2 are the appellants in the first appeal and they have been arrayed as opposite parties Nos. 1 and 2 in the Writ application. The suit was one for partition of schedule 'A' lands and for declaration of title and recovery of possession in respect of schedule 'B' lands which is a part of schedule 'A' lands. Schedule 'B' comprises of 5.09 acres. The plaintiffs' case in nutshell is that Cheranga Bhoi, the common ancestor, had five sons - Buti, Kapurchand, Sukhedhar, Khuda and Kaliabutu. Kapurchand and Sukhedhar died issueless. Khadu died leaving behind his widow, Khira who is plaintiff No. 5. Khadu had five sons of whom two sons have been arrayed as plaintiffs 3 and 4 and three sons have been arrayed as defendants 3, 4 and 5. Kandhana, plaintiff No. 1 is the pre-deceased son's son of Khuda. Kaliabutu died leaving behind his widow, plaintiff No. 6 and his son, plaintiff No. 2. So far as Buti's branch is concerned, the plaint allegation was that Ganapati, grand-son of Buti was unheard of for the last 15 years and accordingly he met a civil death and so was not arrayed as a party to the suit. The plaintiffs alleged that schedule 'A' lands which includes schedule 'B' is, therefore, the joint family ancestral lands. It was their further case that on 26-3-1965 defendants 3 to 5, Guman, father of plaintiff No. 1 and Kaliabutu, father of plaintiff No. 2 sold the 'B' schedule lands to defendants 1 and 2 without any legal necessity and without the knowledge and consent of co-sharers who were in joint possession of the same. It was their further case that plaintiffs 3 and 4 had attained majority on the date of the sale but yet, they were fraudulently declared to be minors. Further defendants 3 to 5, Guman and Kaliabutu were illiterate persons and defendants 1 and 2 who were influential and rich people, exercised undue influence over their venders and got the sale-deed executed in their favour in respect of 'B' schedule lands without paying any consideration therefor. According to the plaint case, the sale is void and as it was a sale by members belonging to the Scheduled Tribe in favour of persons not belonging to the members of Scheduled Tribe without any previous permission of the competent revenue authority. According to the plaintiffs, defendants 1 and 2 remained in unauthorised possession of schedule 'B' lands till 1975 but they were dispossessed by the plaintiffs in 1975 and thereafter though defendants 1 and 2 tried to take possession of the land but failed in their attempt and since the sale is void, the plaintiffs are entitled to declaration of their title and recovery of possession so far as the 'B' schedule lands are concerned. It was also the case of the plaintiffs that the entire 'B' schedule lands is the joint ancestral property and the same is liable to be partitioned.

(3.) Defendants 3 to 5 remained ex parte. Defendants 1 and 2 filed a joint written statement. According to them, the suit is bad for non-joinder of Ganapati representing Buti's branch. They also denied the allegation that plaintiffs 3 and 4 had attained majority by the time of the sale transaction. They also denied the allegation of exercise of undue influence by them as well as the allegation of non-payment of consideration. So far as permission of the competent revenue authority is concerned, it is the case of defendants 1 and 2 that defendant No. 3 and others applied for permission before the Sub-Divisional Officer who granted permission for sale on 14-4-1965 and such permission would relate back to the date of filing of application seeking permission and consequentially there is no infirmity in the same. According to them, plaintiffs have never possessed the 'B' schedule lands in the year 1975 as alleged and the said 'B' schedule lands are not liable to be partitioned as defendants 1 and 2 have acquired valid title and the continuing in possession of the same. On these pleadings, six issues were struck of which issue No. 5 was to the effect, whether the plaintiffs are entitled to partition of the suit lands and if so, what is their share? But in course of hearing, as the plaintiffs' advocate filed a memo intimating that the plaintiffs abandon their claim of partition, the said issues did not arise for consideration. On issue No. 1, the learned trial Judge came to hold that the suit is maintainable and S. 23A of the Orissa Land Reforms Act has no application as the said provision came into force subsequent to the filing of the suit. So far as the validity of the sale-deed is concerned, the learned trial Judge found the same to be invalid as there was no prior permission of the competent authority as required under the provisions of the Orissa Merged States Laws Act. On the question of minority of the plaintiffs 3 and 4 on the date of sale, the trial Judge found that they were minors at the time of sale transaction. On the question of passing of consideration, the trial Court found that consideration did pass under the sale-deed in question. So far as the existence of legal necessity is concerned, the trial Court found that there was no legal necessity but did not further delve into the matter, as the sale was held by him to be invalid one in the absence of previous sanction of the Sub-Divisional Officer. So far as the question of exercise of undue influence is concerned, no finding was arrived at as the plaintiffs did not press the issue. Similarly, the defendants did not press the issue of non-maintainability of the suit in the absence of Ganapati. On these findings the suit was decreed and the title of the plaintiffs and defendants 3 to 5 in respect of 'B' schedule lands was declared and decree for recovery of possession was also granted. It is against this decree, the defendants 1 and 2 preferred the appeal which was registered as F.A. 457/1977.