BRUNDABAN MISRA Vs. ISWAR SWAIN

JUDGEMENT

(1.) The plaintiff has filed this appeal against the reversing judgment of the learned Additional Subordinate Judge, Puri. Respondents 1 to 9 and pro forma respondent No.10 were defendants 1 to 10 respectively in the trial court. The lands described in schedule 'Kha' appended to the plaint are in dispute. The following genealogy describes the relationship between the plaintiff and defendant No. 10.

(2.) According to the plaintiff, the lands described in Schedules 'Ka' and 'Ga' appended to the plaint belonged to the late Krutibas who died leaving behind him three sons, Balabhadra, Hadibandhu and Narasingha. Hadibandhu died issueless around 1926 while he was in a state of jointness with his brothers Balabhadra and Narasingha. After the death of Handibandhu, Balabhadra and Narasingha amicably partitioned their properties. Balabhadra received the 'Ga' schedule properties and Narasingha received the 'Ka' schedule properties. Ever since the amicable partition Balabhadra and Narasingha separately possessed their respective shares and lived in separate mess and estate. Balabhadra died around 1938 leaving behind his widow Keli Dibya who possessed the 'Ga' schedule property as a limited owner till 1956 when the Hindu Succession Act came into force and thereafter she became the full and absolute owner of the self-same property. After Narasingha's death around 1942, his sons defendant No. 10 and the plaintiff divided the 'Ka' schedule property between themselves into two equal shares at an amicable partition in 1965. Defendant No. 10 took the western half and the plaintiff took the eastern half of the 'Ka' schedule lands at the partition and this half share of the plaintiff in the 'Ka' schedule property is described as schedule 'Kha' in the plaint. Schedule 'Ga' property lies to the east of schedule 'Ka' property. The 'Ka' and 'Ga' schedule lands measure 1.40 1/4 decimals each and schedule 'Kha' lands measure 0.70 1/4 decimals. Keli Dibya who was in possession of the 'Ga' schedule lands as the absolute owner voluntarily executed a registered deed of gift on 25-9-1969 and conveyed schedule 'Ga' property to the plaintiff and since then the plaintiff has been in possession of the same. The plaintiff amalgamated the 'Ga' schedule lands which he received by way of gift from Keli Dibya and the 'Kha' schedule lands which he received as his share in the partition between him and defendant No. 10 and he remained in possession of the entire area. However on 28-10-1969 defendant No. 10 who was in possession of the western half of the 'Ka' schedule land executed a sham and collusive deed of sale in favour of defendants 1 to 9 purporting to transfer the entire 'Ka' schedule property though he had no right over the 'Kha' schedule lands. On the strength of the aforesaid collusive deed of sale defendants 1 to 9 removed paddy crops grown by the plaintiff on the 'Kha' schedule lands in the years 1970 and 1971 as a result of which the plaintiff suffered a loss of Rs. 1000/-. In these circumstances the plaintiff filed the present suit against defendants 1 to 10 and has prayed for declaration of his right, title and interest and confirmation of possession over the 'Kha' schedule lands, for damages of Rs. 1000/- and for declaration that the sale-deed dated 28-10-1969 executed by defendant No. 10 in favour of defendants 1 to 9 is illegal, inoperative and void.

(3.) Defendant No. 10 did not file any written statement or contest the suit and accordingly he was set ex-parte. Defendants 1 to 9 have filed a joint written statement. According to these defendants, defendant No. 10 was no doubt the natural born son of Narasingha, but he had been adopted by Hadibandhu. The three brothers Balabhadra, Hadibandhu and Narasingha died in that order and till their respective deaths they were joint in mess and estate. Balabhadra died in the year 1933 while he was in a state of jointness with his brothers Hadibandhu and Narasingha upon whom the entire property devolved after Balabhadra's death. Subsequently Hadibandhu and after him Narasingha died in a state of jointness and accordingly thereafter defendant No. 10 and the plaintiff remained in joint possession of the entire lands described in schedules 'Ka' and 'Ga' of the plaint. Keli Dibya, widow of Balabhadra, had no right and was never in possession of the 'Ga' schedule property. There was never any partition between Balabhadra and Narasingha. Till her death Keli Dibya had only a right of maintenance, but she had no other right or possession over the joint family property. The plaintiff has admitted in several documents that defendant No. 10 had been adopted by Hadibandhu and as such had eight annas share in the family properly. Balabhadra had never separated from his brothers nor had Keli Dibya taken over separate possession of the 'Ga' schedule property. Keli Dibya was a Purdanashin and illiterate lady and she was too old and ailing at the time of execution of the alleged deed of gift. The deed of gift was a fraudulent document and had not been duly executed by Keli Dibya nor attested according to law. The gift is also otherwise invalid as Keli Dibya had no right to gift away the 'Ga' schedule property. The plaintiff was also never in exclusive possession of the 'Ga' schedule property. It is denied that there was any partition between the plaintiff and defendant No. 10 around 1965. The allegation of amalgamation of the 'Kha' and 'Ga' schedule lands by the plaintiff is denied. Since 1960 defendant No. 10 and the plaintiff had let out the joint family property on Bhag basis to defendant No. 1. The allegation of illegal removal of paddy crops is denied. It is stated that in Feb., 1969 the plaintiff and defendant No. 10 amicably partitioned the joint family properties and separated in mess. The plaintiff was allotted eight annas share on the eastern side and defendant No. 10 was allotted eight annas share on the western side. Defendant No. 10 sold his share on the Western side to defendants 1 to 9 by a registered deed of sale dated 28-10-1969 for Rupees 1500/-. The sale was necessary in order to pay off debts incurred by defendant No. 10. Defendants 1 to 9 have claimed right, title and possession over the lands conveyed to them by defendant No. 10 under the sale-deed dated 28-10-1969. They have accordingly prayed for dismissal of the suit.