KALPANA MEHER Vs. BANSIDHARA PATRA

JUDGEMENT

(1.) The Appellant, by filing this Appeal under Sec. -100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dtd. 3/9/2020 and 11/9/2020 respectively passed by the learned Additional District Judge, Boudh in R.F.A. No.05 of 2016(T).

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

(3.) The Plaintiff's case is that the father of Defendant No.1 namely, Jogeswar had purchased land of an area of 1116 sqft. from one Binayak Babu by registered sale-deed. He was possessing the same by constructing the residential house over there. The residential house was on the southern portion of the land. Jogeswar was paying rent to the State. In the year, 1973, the record of right was issued in the name of Jogeswar. The Defendant No.2 is the married daughter of said Jogeswar, who was residing with her husband at his service place. It is stated that taking advantage of the innocence, simplicity, old age and sanility of Jogeswar, the Defendant No.2 obtained a sale-deed on 29/10/1974 in respect of land of an area of 558 sqft. from the northern side of the property of Jogeswar without the knowledge of the family members. It is stated that the said transaction was merely on pen and paper and there was no delivery of possession of the land described in the said sale-deed by said vendor, Jogeswar in favour of the Defendant No.2. Jogeswar died sometime in the year 1979 and his widow died in the year 2007. After the death of Jogeswar and his wife, his four sons continued to remain in possession of the suit land as their homestead and dwelling units. During settlement operation, record of right in respect of 1116 sqft. of land was published in the name of Defendant Nos.3 to 6 as also their mother. It is stated that the Defendant No.2 being misguided intended to harass her brothers and filed Settlement Revision Case No.31 of 2000 before the Commissioner, Land Records and Settlement, Cuttack on the basis of her purchase and she got a favourable order in respect of the entire Ac.0.030 decimals of land although she had purchased the northern half of the suit plot. The Commissioner, accordingly, directed to record the entire land in favour of Defendant No.2 by deleting the names of Defendant Nos.3 to 6 and their mother. The Tahasildar, initiated Mutation Case No.27 of 2001 and prepared separate Patta in the name of Defendant No.2. The Defendant No.2 now being armed with the illegal order, threatened to alienate the suit land to the deprivation of the family members of Jogeswar from using the suit land as their dwelling unit. Knowing the above facts, the Plaintiff wanted to have an amicable settlement which however was not agreed upon by the Defendant No.2 who insisted that she is the owner of entire Ac.0.030 decimals of land under Plot No.1119 as it has been recorded in her name. It is further stated that during the discussion for amicable settlement, the Defendant No.2 suggested that she would alienate entire Ac.0.030 decimals of land for consideration of Rs.6,00,000.00 to the Plaintiff and other family members of Jogeswar. Accordingly, the Plaintiff was compelled to sign on an agreement as her husband Defendant No.6 was out of station on election duty. It is stated that the plaintiff tried her best to convince Defendant No.2 that she was only entitled to the northern half of the Plot No.1119 in view of the registered sale-deed dtd. 29/9/1974; the Defendant No.2 remained adamant. Accordingly, an agreement was executed between the Defendant No.2 on one hand and the Plaintiff with the Defendant Nos.3 to 5 on the other. It was subsequently realised that the Defendant No.2 is only entitled to get 558 square feet of land towards northern side of the suit land and not the entire plot of Ac.0.030 decimals for which her monetary entitlement is Rs.3,00,000.00. It is averred that the Defendant Nos.3 to 5 are in possession of the portion of the suit land and as such the agreement dtd. 9/2/2012 speaks of the intention of the Defendant No.2 to sale her interest from out of the suit property. So, it is said that the Plaintiffs are protected under Sec. -53(A) of the Transfer of Property Act. It is stated that the Defendant No.2 did not execute the sale-deed within the stipulated time. So, the Plaintiff and the Defendant Nos.3 to 5 sent notice as they were ready and willing to perform the part of their contract. The Defendant No.2 inspite of not performing her part of the duty by executing a registered sale-deed, through her power of attorney holder on 1/3/2012 sold the land to the Defendant No.1 for consideration of Rs.1,50,000.00. It is thus said that although the Defendant No.2 had no right to alienate the southern portion which is the dwelling unit of the Plaintiff's family, she had done illegally. The Defendant No.1 being a stranger to the family had no right to purchase the suit land when the Plaintiff and other Defendants have the preferential right to re-purchase the interest of the Defendant No.2.