JUDHISTIR SAHU Vs. SESHA PATRA

JUDGEMENT

(1.) Defendants are appellants against an affirming judgment in a suit for declaration of title and confirmation of possession or in the alternative for recovery of possession.

(2.) The suit property comprises of 5.89 acres of agricultural land and a house standing on a portion of it in village Randha which is admittedly the property of one Nabin Patra. Nabin's son is Ulla. Nabin died in 1914 end Ulla died in 1928. Nabin's second wife is Jhara Patrani. It is alleged that plaintiff who is the natural born son of Krishna, brother of Nabin was taken in adoption by Jhara. Jhara executed a deed of gift in favour of defendant No. 1 in 1943. Certain disputes having arisen between Jhara Patrani and the present plaintiff, the present plaintiff filed a suit for declaration of title and recovery of possession claiming right, title and interest on the basis that he was the adopted son of Jhara Patrani. That litigation was fought up to the High Court and disposed of by the High Court in Second Appeal No. 232 of 1949 (Ext. J in this case) and the plaintiff's claim of adoption was negatived. It was also held in the said litigation that the deed of gift was invalid since Jhara had a limited interest. The High Court affirmed the finding of the two courts below in the said case that Jhara posessed the properties as limited owner. According to the present plaint case, despite this decision, the property continued to be in possession of the plaintiff and Jhara never enjoyed the same. Jhara died in the year 1971 and was physically incapable and mentally unsound to execute any document, but defendants 2 and 3 got a will executed by Jhara in their favour on 22-8-1971- marked Ext. A/3 and in a proceeding initiated under Section 145 of the Code of Criminal Procedure, the Magistrate declared the possession of the property in favour of the defendants and hence the present suit.

(3.) Two sets of written statements were filed one by defendant No. 1 and another by defendants 2 and 3. Defendant No. 1 pleaded that defendants 2 and 3 were in possession and enjoyment of the property by virtue of the will (Ext. A/31 and defendant no. 1 was not a necessary party to the suit. Defendants 2 and 3 resisted the suit on the ground that Jhara came to possess the properties after the death of Ulla and continued to possess the same till her death in 1971. On 22-8-1971, she had executed the will (Ext. A/3) in a sound state of mind and out of her own free will and the will had been acted upon, inasmuch as defendants 2 and 3 were possessing the land covered under the Will and on the basis of the Will the revenue papers had been changed in the names of defendants 2 and 3. According to these defendants, the plaintiff having been unsuccessful in getting his title declared in earlier suit (Title Suit No. 295 of 1944) and who was never in possession of the property had filed this present suit mischievously to grab the property.