UDAYA NAIK Vs. LOKANATH NAIK

JUDGEMENT

(1.) This is a defendant's appeal against the concurrent decisions of the two lower Courts decreeing the plaintiffs' suit for declaration of title and recovery of possession of some raiyati lands described in Schedule A-1 of the plaint and a portion of a residential building (Schedule B-1) situated in village Bandhapali, P. S. Dhama, in the district of Sambalpur.

(2.) Plaintiff No. 1 had a brother named Balamakund to whom the disputed property originally belonged. The appellant-defendant No. 1 is their sister's son. Balamakund was issueless and had brought up defendant no. 1 in his house though he did not formally adopt him as his son. On 11th of April 1938 Balamakund executed an unregistered deed of gift (Ext. E) giving away all his properties to defendant No. 1. The consent of the Gaontia to the transfer was obtained on the document itself and similarly the consent of the plaintiff who was the next heir of Balamakund was also obtained on the same document. Balamakund died a few days afterwards and defendant No. 1, with a view to further safeguard his rights, obtained an Ekrarnama (Ext, B) from the plaintiff on 7-12-1938 in which his consent already given in the deed of gift was ratified. Defendant No. 1 obtained possession of the properties by virtue of the deed of gift and continued in possession and was paying his share of the rent regularly to the Gaontia. On 16-7-1942, however, the plaintiff instituted the suit under appeal alleging that he was the next heir of Balamakund and as such entitled to his property. The suit was brought as if it were a simple suit for ejectment of a trespasser and in the plaint there was a complete suppression of the deed of gift and the Ekrarnama (Exts. E and B). Defendant No. 1 contested the claim alleging various grounds such as estoppel, waiver, valid surrender, etc. But one of the important grounds urged by him was that the suit was barred by the special rule of limitation laid down in Section 47(1), C. P. Tenancy Act, 1898. This was the only point that was pressed before us and we think that it would suffice for the disposal of the appeal. Plaintiff No. 2 and defendant No. 2 are not necessary parties.

(3.) The disputed property is situate in that portion of Sambalpur district where the Central Provinces Tenancy Act of 1898 is still in force. As the property is admittedly an occupancy holding the relevant sections for consideration are Subsections (3) and (5) of Section 46 of that Act and Section 47(1) of that Act. They are reproduced below for ready reference.