RAMA CHANDRA SAHOO Vs. MAHENDRA KUMAR PADHIAR

JUDGEMENT

(1.) THIS Second Appeal is in challenge of the judgment and decree dated 22.11.2006 and 6.12.2006, respectively, passed by the learned Additional District Judge, Balasore in R.F.A. No. 19 of 2005/102 of 2002 reversing the judgment and decree dated 26.7.2000 and 12.9.2000, respectively, passed by the learned Civil Judge (Senior Division), Balasore in Title Suit No. 173 of 1993 -I.

(2.) THE appellant is Defendant No. 3. He is R -5 in the First Appeal. The original plaintiff is late Rowjee Padhiar. Respondent Nos. 1 to 4 in this Second Appeal are the substituted L.Rs. of the original plaintiff. They are the appellants before the lower appellate court. Respondent Nos. 5 to 8 are the substituted L.Rs. of late Harimohan Mohanty, Defendant No. 1, who died during pendency of the Suit. They are Respondent Nos. 1 to 4 in the First Appeal. It appears, one Radhakumunda Das who was D.2 in the suit has not been arrayed as a party in the First Appeal so also in the Second Appeal.

(3.) CASE of D.3, the present appellant, is that his father being hard -pressed for money obtained a loan from the plaintiff and to secure the loan executed the deed marked Ext. 1 without intending to alienate the property with a condition that the plaintiff would return the deed after the loan was paid up but Panu Mohanty would continue to remain in possession of the suit land. After death of Panu Mohanty, his son (D.1) continued to remain in possession of the suit land. On 18.4.1990, D.1 sold the suit land to D.3 under three registered sale deeds dated 18.4.1990 and delivered possession of the land to D.3. As regards the compromise decree, D.3 has taken the plea that O.S. No. 178/90 -I in the court of Munsif, Balasore was lawfully decreed in terms of compromise.