SUNIL KUMAR MOHAPATRA Vs. SUSHIL KUMAR MOHAPATRA

JUDGEMENT

(1.) THIS appeal is against the order dated 8.8.2011 passed by the learned Civil Judge (Senior Division), Balasore in I.A. 505/2011 arising out of C.S.590/2011 dismissing a petition under Order 39 rule 1 and 2 read with Section 151 of the C.P.C.

(2.) THE appellant is the plaintiff -petitioner before the learned court below. Respondent Nos.3, 4 and 5 are O.P.Nos.1 to 3, respectively, in the I.A. Names of Respondent Nos.1 and 2 have been deleted since they were not arrayed as party in the said I.A. They are Defendant Nos.1 and 2 in the Civil Suit.

(3.) IT is not in dispute that father of the appellant namely, late Markanda Mohapatra, had purchased Ac.0.51 decimals of land appertaining to C.S. Plot No.215 and Ac.0.09 decimals appertaining to C.S. Plot No.214 in mouza Padhuanpada under registered sale deed Nos.110 and 1951 and 1 of 1967. Markanda had three sons. Appellant asserts that ignoring him, Markanda executed R.S.D. No.5169 dated 11.11.1982 in favour of his second son Sushil Kumar Mohapatra for Ac.0.07 1/2 out of C.S. Plot No.214 and another sale deed bearing No.5170 dated 11.11.1982 in favour of his third son Dilip Kumar Mohapatra for an area of Ac.0.030 out of C.S. Plot No.215. Markanda had also executed a Gift Deed bearing No.713/77 in favour of his son Dilip for an area of Ac.0.20 out of C.S. Plot No.214 and 215. It is alleged by the appellant that there was no due execution of the deeds and those deeds were executed behind his back and were never acted upon. Since possession of the land, purportedly transferred under those deeds, was never delivered, the property remained under joint possession of all the three sons of Markanda. During the major settlement operation Sushil and Dilip had never claimed for correction of R.O.R. on the basis of those deeds for which in the M.S. R.O.R., finally published in 1987, the property has been recorded jointly in the names of all the three sons of Markanda. While the matter stood thus, Sushil and Dilip initiated Mutation Case No.2504/2010 and 5507/2009 before the Tahasildar, Balasore to mutate the land shown to have been transferred to them under the aforestated deeds. The Tahasildar having no jurisdiction to correct the M.S. R.O.R. illegally allowed both the mutation cases and issued separate corrected R.O.Rs. in the names of Sushil and Dilip. During pendency of the mutation proceedings, Sushil filed a partition suit (C.S. No.241/2011) in the Court of the learned Civil Judge (Senior Division), Balasore claiming 1/6th share in the properties of late Markanda which includes the property which was transferred to him by Markanda under the registered sale deed dated 11.11.1982. Further case of the appellant -plaintiff is that Sunil and Dilip each has executed a power of attorney in favour of Kishore Nayak, the present Respondent No.3, who, on the strength of such power has executed two registered sale deeds on 29.3.2011 in favour of his two minor sons, i.e., Respondent Nos.4 and 5. In addition to that Sushil has executed registered sale deed No.2729 dated 29.3.2011 in favour of present Respondent No.3. All these sale deeds in favour of the present respondents are in respect of portions of the plots mentioned in Schedule 'A' of the appeal memo. It is alleged that after obtaining the sale deeds Respondent Nos.3 to 5 are creating disturbance over the Schedule 'A' land. The appellant -plaintiff has filed the suit to declare the registered sale deeds and the Gift Deed executed by his father Markanda in favour of Sushil and Dilip and subsequent sale deeds executed in favour of Respondent Nos.3 to 5 by Sushil and Dilip as void and for a declaration that the correction of R.O.R. made under the order of the Tahasildar is wrong and illegal, besides praying for permanent injunction against the respondents.