NATABAR MOHANTY AND ORS. Vs. TANKA THANAPATI

JUDGEMENT

(1.) PLAINTIFFS 2 & 3 and legal representatives of Plaintiff No. 1 are Appellants against dismissal of a suit for declaration of title. In this appeal, Appellant No. 1 has expired and memorandum has been filed that he has left behind, no legal representatives for which his name has been expunged.

(2.) JUDHISTIR Parida husband of Plaintiff No. 1 was an employee under the ruler of Sonepur. He has acquired about 34 acres of agricultural land in village Dhobamunda which is about 2 to 3K. Ms. from Sonepur town. He has also a house on land measuring about 10 decimals in Sonepur town. All these properties were acquired in name of his wife Plaintiff No. 1. Defendant is a man of village Sankara in Binka Police -Station. He has a house at Majhipada of Sonepur Town which is a different area than the area in which Judhistir and his wife reside in their house in Sonepur town. Village Sankara is 10 to 12 miles from Sonepur intervened by Anga river. Defendant is a Peon in the Block Development Office since about 5 to 6 years before the date of his deposition and has a betel shop in Sonepur town. Defendant was going to worship in Samalai temple near house of Plaintiff No. 1 every day and was visiting the house of Judhistir from his childhood. In the aforesaid background, when Judhistir was more than 70 years and was suffering from cancer and Plaintiff No. 1 was also sufficiently aged, she executed a deed of gift of her entire property in village and the house at Sonepur on 28 -9 -1973. On the same day, Defendant executed an agreement to maintain Plaintiff No. 1. The deed of gift was registered on the next day which is in custody of Defendant and the agreement executed by Defendant is in custody of Plaintiff No. 1. Within a few days of execution of the deed Judhistir expired. There after, troubles started. Plaintiff No. 1 cancelled the deed of gift on 10 -7 -1974 by a registered instrument. Shortly after such cancellation 04 -9 -1974 Plaintiff No. 1 executed a Will in favour of Plaintiff No. 3. In the same year, Defendant initiated a proceeding under Section 145, Code of Criminal Procedure, against Plaintiff No. 1 and Plaintiff No. 3, claiming to be in possession of the land. Preliminary order was passed and the agricultural land was attached : On account of this attachment of the property when evidence was being recorded in the 149, Code of Criminal Procedure proceeding, Plaintiff No. 1 and Plaintiff No. 3 with Plaintiff No. 2, filed a suit for declaration of title in respect of the property on 5 -10 -1977, claiming that Plaintiff No. 2 is the Thikadar in respect of the disputed land under Plaintiff No. 1

(3.) CASE of Defendant is that from his childhood he is acquainted with Plaintiff No. 1 and he was taking care of Plaintiff No. 1 and her husband, who were treating him as his son. He was at times advancing money and was also purchasing medicines for them. Therefore, Plaintiff No. 1 was pleased with him and transferred her property by gift with the hope that the will maintain her and her husband property for rest of the life and enjoy the property since Plaintiff No. 1 and her husband were childless. He was in possession of the property after the gift and Plaintiff after donating the property which was accepted by him cancelled it, which is of no effect. He was acquired valid title over the property.