JATA SWAIN Vs. NATABAR DAS

JUDGEMENT

(1.) The two appellants, who were plaintiffs in the trial court, have filed this appeal against the affirming judgment of the learned Additional District Judge, Puri. Respondents 1, 2 and 3 were defendants 1, 2 and 3 in the trial court. The plaintiffs' case may be briefly stated. The following genealogy given in the plaint describes the relationship between the parties :- The plaintiffs have been in possession of the suit lands since the time of their forefathers. Hari, Krushna and Jagu were living jointly and were also possessing the suit lands jointly. Of the there brothers, Krushna's death came first, followed by Jagu and Hari was the last to die in the year 1953. Thereafter the plaintiffs have remained in joint possession of the suit lands. The suit lands comprise Ac.O.35 dec. of lands appertaining to plot No. 9 (AC.O.02 dec.), plot No. 10 (Ac.O.18) and plot No 219 (Ac. O.15 dec.) of Khata No. 10 in Mouza Bagha. Plot No. 9 consists of a house and the remaining two plots are Bari lands. The two plaintiffs were in joint possession of the house and also jointly used the Bari lands for growing vegetables. It is alleged that in 1968, defendant 1 (respondent 1) filed a false case against the plaintiffs on the allegation that the latter had cut and removed one Chakunda tree from plot No. 10 and on the basis of false evidence adduced by defendant 1, the plaintiffs were convicted in the theft case. Being emboldened by the judgment of the criminal court, defendant 1 threatened to disposses the plaintiffs from the suit lands. It is further alleged that Jagu, who was illiterate, was working as a servant under defendant 1. Jagu was also a drunkard and defendant 1 exercised undue influence over Jagu and induced him to execute some fictitious documents in favour of defendant 1. Jagu never understood the contents of the documents, nor were the contents of the documents read over and explained to him and in any case the documents do not bind the plaintiffs. The plaintiffs have remained in possession of the suit lands for more than twenty years. In view of the threats of defendant 1, plaintiffs filed the present suit for declaration of their right, title and interest and confirmation of possession over the suit lands and for a declaration that plaintiffs were not bound by the sale deed dt. 13/4/1942 purported to be executed by Jagu in favour of defendant 1.

(2.) In his written statement, defendant 1 has denied the allegations of the plaintiffs. His case is that both the plaintiffs are the sons of Jagu and that Jagu was the last coparcener to die after the deaths of Hari and Krushna. Being in need of money Jagu mortgaged the suit properties with defendant 1 and executed Ex.A, a registered deed of mortgage dt. 2-1-1936. On 25-6-1941 Jagu took a loan of Rs. 25/- from defendant 1 and executed a promissory note, Ext.B. As Jagu could not repay the loan under the seed of mortgage and the promissory tote and as he was in need of more money, he sold the suit lands to defendant 1 by executing Ext.C, a registered deed of sale dt. 13-4-1942 and delivered possession of the suit lands to defendant 1. Jagu also handed over the Parcha, Ext. D, in respect of the suit lands. After purchase, defendant 1 remained in possession of the suit lands and was paying rent thereof. In 1968 the plaintiffs unauthorisedly cut and removed one Chakunda tree from plot No. 10 and therefore defendant 1 filed a criminal case against them. The plaintiffs were convicted in the said case and their conviction was upheld in appeal. According to defendant 1, during Khanapuri operations, the plaintiffs with a view to have their names recorded in respect of the suit properties entered the house standing on plot No. 9 with the help of some local people. After occupying the said house, the plaintiffs cut and removed a Chakunda tree from plot No. 10 as a result of which defendant 1 filed the criminal case referred to above against the plaintiffs and the latter were convicted in the said case. Again the plaintiffs committed theft of black-gram from plot No. 219 as a result of which another criminal case has been filed against them. It is alleged that in order to avoid criminal liability in the criminal case, the plaintiffs filed the present false case against defendant 1.

(3.) Defendants 2 and 3 did not contest the suit and were accordingly set ex parte. Defendant 3 has examined herself as a witness for the plaintiffs and has supported the case of the plaintiffs.