LAWS(ORI)-2004-6-8

JAYADEV TRIPATHY ALIAS PANDA Vs. DILIP KUMAR PANDA

Decided On June 18, 2004
JAYADEV TRIPATHY ALIAS PANDA Appellant
V/S
DILIP KUMAR PANDA Respondents

JUDGEMENT

(1.) Defendant No. 1 of Title Suit No. 48 of 1997 of the Court of Second Additional Subordinate Judge, Cuttack has preferred this appeal under Section 100 of the Code of Civil Procedure, 1908 (in short, 'C.P.C.') as against the reversing judgment passed by the Second Additional District Judge, Cuttack in Title Appeal No. 20/84/53 of 1981/1983/1984. Baikunthanath Panda was the original plaintiff. Dilip Kumar Panda was substituted in his place as his adopted son inasmuch as said Baikuntha died on 27-10-1980, i.e., after the trial Court passed judgment and decree on 30-9-1980. He became the appellant in the Court below and now he is the respondent No. 1 and the other defendants are respondents Nos. 2 to 7.

(2.) Plaintiff filed the suit with the prayer to declare the Gift Deed dated 18-12-1973 to be void, illegal and inoperative and to permanently restrain defendant No. 1 to not to disturb the possession of the plaintiff in respect of the suit land described in Schedule 'B' of the plaint. Schedule 'A' is the family genealogy, which indicates that plaintiff and Banchhanidhi are the two sons of Mayadhar and in partition the suit land had fallen to the share of plaintiffs father. After death of Mayadhar, plaintiff and Banchhanidhi remained in joint family. In 1937 Banchhanidhi died and his widow Agani (defendant No. 2} remained in jointness with the plaintiff. Defendant No. 1 (appellant) is the son of Prahallad Tripathy. Said Prahallad is the son-in-law of defendant No. 2. Plaintiff was residing in Bangladesh and therefore, the joint family property was being looked after by said Prahallad. In the year 1973 said Prahallad, on the misrepresentation to get a power of attorney executed for looking after the settlement operation, obtained signature of the plaintiff and L.T.I, of defendant No. 2 and converted the said stamp paper as a deed of gift describing the defendant No. 1 as the son of the original plaintiff, i.e., Baikuntha. In October, 1974 plaintiff returned from Bangladesh. The Rent Camp of the settlement operation was still going on. At that stage plaintiff could know about the fraud and mischief of defendant No. 1 and his father. Defendant No. 1 and his father promised to cancel the gift deed but did not fulfil the promise. On the other hand, on 1-2-1977 defendant No. 1 wanted to take forcible possession of the suit land. Therefore plaintiff filed the aforesaid suit claiming the above noted reliefs.

(3.) Substance of the pleading of defendant No. 1 is that Banchhanidhi died in the year 1941 and by then he was separate from the plaintiff. Defendant No. 1 is the adopted son of plaintiff, because he was taken on adoption on the 'Akshya Trutiya' day in the year 1961. Plaintiff was never staying at Bangladesh and therefore, assertion of returning to India in 1974 is not true. The gift deed was voluntarily executed, which was registered on 18-12-1973 and in that respect neither there was any fraud, manipulation nor connivance, be it between the defendant No. 1 and his father or with the defendant No. 2. The record of right was prepared in the name of defendant No. 1 on the basis of the said gift deed in spite of objection raised. Plaintiff having been influenced by the eldest daughter of defendant No. 2 and the husband of 3rd daughter of the said defendant and some of his agnetics. has filed the suit with false assertions.