GANESH PATRA Vs. BANABIHARI PATRA

JUDGEMENT

(1.) This is a second appeal under Section 100 of the Code of Civil Procedure, 1908 (C.P.C.).

(2.) The relevant facts briefly are that the appellants filed Original Suit No. 26 of 1980 (I) in the court of the learned Munsif, Puri for declaration of right, title and interest in the suit land measuring Ac.0.08 decimals out of Ac.0.024 decimals in Plot No. 2131 / 6789 under Khata No. 386 in village Pattapur in Puri district and for permanent injunction restraining the defendant from interfering with their possession over the suit land. The case of the appellants as plaintiffs in the said suit was that the suit land originally was part of the joint family properties of the plaintiffs and the defendant. The defendant brought a suit O.S. No. 81 of 1951-1 for partition of the joint family properties in the Court of the learned Subordinate Judge, Puri. The said suit was decreed preliminary on 26-9-1951 on compromise and in the said preliminary decree, the shares of the parties were defined. On the basis of the shares so defined, the joint family properties were divided by metes and bounds amicably in an unregistered deed of family settlement executed on 7-1-1974. As per the said deed of family settlement, the suit land fell to the share of the defendant and the defendant remained in exclusive possession of the same. Thereafter, the defendant sold the suit land by a registered sale deed executed on 27-3-1954 for a consideration of Rs. 100/- and delivered physical possession of the same to the father of the plaintiffs. On 28-1-1967, the defendant filed an application for passing a final decree in the Court of the learned Subordinate Judge, Puri. In the final decree proceedings, the defendant filed a petition for appointing a Commissioner for partition of their joint family properties including the suit land. The learned Subordinate Judge appointed a Commissioner and the Commissioner allotted the suit land to the share of the defendant ignoring the registered sale deed dated 27-3-1954 by which the suit land had been sold by the defendant to the father of the plaintiffs. The final decree was passed in accordance with the allotments by the Commissioner and by the said final decree, the suit land was allotted in favour of the defendant. Taking advantage of the allotment of the suit land in his favour, the defendant started creating disturbance and tried to dispossess the plaintiff from the suit land.

(3.) The defendant contested the said suit O. S. No. 26 of 1980-1 and in the written- statement took a plea, inter alia, that the suit was barred by res judicata inasmuch as the case of the plaintiffs that the suit land should have been allotted to the plaintiffs on the basis of the registered sale deed executed on 27-3-1954 had been rejected by the Court in the final decree proceedings in the earlier suit O. S. No. 81 of 1951. The defendant also pleaded in the written-statement that the said registered sale deed executed on 27-3-1954 was obtained by the father of the plaintiffs from the defendant by fraud and was not valid. On the basis of the said pleadings, the learned Munsif framed issues and evidence was led by both the parties.