(1.) The legal heirs of defendant No. 1 and defendant No. 2 in O. S. No. 95/24 of 1981/79-I of the Court of Subordinate Judge, Bhubaneswar are the appellants against a reversing judgment passed by the lower appellate Court.
(2.) The respondent No. 1 is the daughter of Radhu Parida, the original plaintiff. The respondents 2 to 4 are defendants 4 to 5 in the trial Court. Similarly respondent No. 5 is defendant No. 6. The original plaintiff had filed a suit for declaration that the defendant-appellants have no right, title and interest over the suit land and for permanent injunction. It has been stated, inter alia, by the original plaintiff Radhu Parida that the 'A' Schedule property of the plaint was the ancestral property which stood recorded during the last settlement of 1962 in the names of Banamali Parida, Kelu Parida, Parasuram Parida, Sons of Uchhab Parida and Binod Parida, (father of the plaintiff) jointly. The father of the plaintiff had 8 annas interest whereas the other branch had the balance 8 annas share. Parasuram, one of the co-sharers having been dead, his interest had devolved upon Kelu and Banamali. The suit properties have been treated as the joint family properties which are in joint possession and enjoyment by all the branches. Due to family necessity 'B' Schedule property which is a part of 'A' Schedule property was sold in favour of Krushna Jena, defendant No. 6 on 25-6-1962 for Rs. 600/- and possession of the land which was sold to him was delivered following the execution of the sale deed. But defendants 1 and 2 taking advantage of the innocence and illiteracy of the original plaintiff got a 'benami' sale deed executed in their favour with the assurance that they would arrange prospective vendors at a higher price. The sale deed was not supported by consideration and the property conveyed to them was joint family properties of the family. Notwithstanding the execution of the sale deed the plaintiff and his other family members used to possess jointly. Therefore, the sale deed dated 14-2-1963 did not convey any title to defendants 1 and 2. The defendants 1 and 2 filed their written statement by taking several pleas, such as, the suit is barred by limitation. There has been no cause of action for filing the suit and it is not maintainable for not impleading necessary parties. It has been further stated that the plaintiff was possessing the suit land separately as it fell to his share without any concern with the other co-sharers. The sale deed in favour of defendant No. 6 was also illegal and inoperative and possession was never delivered to him. The defendants 1 and 2 paid consideration to the original plaintiff and thereafter he executed the sale deed. With these averments the appellants prayed for dismissal of the suit. The defendant No. 6 filed a separate written statement. The defendant No. 6, however, supported the plaintiff's case so also the defendant Nos. 3 to 5.
(3.) The learned Munsif after elaborately considering the documentary and oral evidence found that the sale deed under which the land conveyed to the appellants was supported by consideration. It has also been held that the plaintiff having fully understood the contents of the sale deed executed it in favour of defendants 1 and 2. P. W. 4 also made a trite admission before Sub-Registrar that he executed the sale deed. It has been further held that by unilateral deed of cancellation the title which flowed under the sale deed (Ext. 4) cannot, however, be negatived. From the contents of the sale deed there has been unequivocal recital that the properties of the joint family have been partitioned before execution of the document. The plaintiff having not filed the suit for cancellation of sale deed within the prescribed period of limitation, such deed of conveyance could not have been assailed by filing the instant suit. With these observations the plaintiff's suit was dismissed.