BASUDEV DAS Vs. SOMENATH DAS

JUDGEMENT

(1.) THIS is an appeal, by leave from the judgment of justice J. K. Misra, in Second appeal No. 217 of 1959, reversing the concurrent decision of the two lower courts and decreeing the plaintiffs suit with costs throughout.

(2.) THE disputed property consists of 1. 54 acres (sic) Survey No. 185 of village bodoknanda, situated within the zamindary of Khallikota in Ganjam district. That survey No. has a total area of 4. 43 acres and had originally belonged to a joint family consisting of the plaintiff (respondent) and his co-sharers, including his cousin Natabar and one Mukuna. The plaintiff's case was, however, that by an amicable partition of the year 1936 the above portion of the Survey No. tell to the share of Natabar. After Natabar's death childless, his widow Kanchan first executed an agreement tor sale, of the land in favour of the plaintiff on 18-4-42. But when she subsequently resiled from the agreement, the plaintiff by suit for specific performance of contract (I. S. 94 of 1946) obtained a decree against her and got the sale deed executed through court sometime in 1949. According to the plaintiffs he also obtained possession through Court. Thus the plaintiff claims title and possession over the disputed property, but as a cloud was cast on his title by the order of acquittal passed by the Sub-Magistrate of Kodola on 27-9-1955 in Cr. Case No. 165/57 in which defendant 1 was the accused he brought the suit under appeal tor declaration of his title and other consequential reliefs.

(3.) THE defendants however contended that the entire Survey No. 185 was sold away by the Zamindar of Khallikote in execution of a rent decree in 1944 in the court of the Revenue Divisional Officer, Chhatrapur and purchased by one paramananda Mohapatra. Ext. B is the sale certificate dated 18-3-1944 in execution, Proceeding No. 1723 of 1942. Later on the auction purchaser paramananda Mohabatra sold the disputed property (a portion of Survey No. 185)in favour of Satyabnamam defendant No. 2 by a registered sale deed, Ext. F dated 7-6-45. Defendant No. 1 is the husband of defendant No. 2. The defendants therefore claimed superior title to the property by virtue of the aforesaid rent saie and the subsequent private sale from the auction purchaser in the name of defendant No. 2.