PURANDAR SA Vs. KISHORE CHANDRA SATPATHY

JUDGEMENT

(1.) Defendants 1 to 7 are the petitioners challenging the order dated 1/8/1981 of the Munsif, Sambalpur, in Title Suit No. 8629 of 1976/1980 whereby the learned Munsif has held that the suit did not abate as a whole though it abated as against defendant 14.

(2.) A short genealogy indicating the relationship of the defendants inter se is given hereunder for proper appreciation of the point in the suit: Plaintiff filed the suit for declaration of his right, title and interest on the assertion that after the death of Uddhab, Kunja (defendant 10) separated himself from his other brothers and took his share in mauza Kenapali and in mauza Patrapali, whereas his other brothers, namely Hrushikesh (defendant 14) and Nilamani jointly possessed lands in mauza Sunari. Nilamani and Hrushikesh sold their land in favour of pro forma defendant 18 who is no other than their sister's husband by registered sale deed dt. 25-2-1961 and the said defendant 18 was continuing to possess the land including the suit land in his own right. In the year 1971 defendants 10, 12 and 14 created disturbance in the peaceful possession of defendant 18 and a proceeding under S.145, Cr. P. C. was initiated in Criminal Miscellaneous Case No. 239 of 1971. In that proceeding, possession of defendant 18 was declared. The order of the learned Magistrate dated 13/9/1972 in Criminal Misc. Case No. 239 of 1971 was challenged before the Sessions Judge, Sambalpur, in Criminal Revision No. 24 of 1972 which was dismissed by the learned Sessions Judge. Defendant 18 executed a sale deed in favour of the plaintiff on 25-6-1973 in respect of the suit land and delivered possession thereof to the plaintiff. Plaintiff alleges that defendants 1 to 9 without any right, title and interest over the land tried to create disturbance in plaintiff's possession and a case under S.145, Cr. P. C., was instituted by the plaintiff being Criminal Miscellaneous Case No. 125 of 1974. The learned Magistrate initially attached the suit land and then decided that this was a matter where parties should obtain order from the competent court proving their title and possession. Plaintiff, therefore, filed the suit for declaration of his title and possession over the suit land.

(3.) Defendants 1 to 6 contested the suit and filed written statement alleging that the sale by Nilamani and Hrushikesh was not for legal necessity nor was it acted upon and, therefore, defendant 18 did not get any title by the said sale. Consequently, the plaintiff did not derive any title by virtue of the sale deed executed by defendant 18 in his favour. According to the defendants, Nilamani died in a state of jointness with Kunja and Hrushikesh without leaving any male issue and, therefore, on his death, Kunja and Hrushikesh succeeded to the rights of Nilamani. Later on, Kunja relinquished his interest in favour of the surviving coparceners and, therefore, defendants 10, 11, 12, 13, 15 and 16 being the owners-in-possession of the property executed a registered sale deed in favour of them (defendants 1 to 6) with regard to their joint interest and thus they were possessing the land in their own right.