MADHAB SAHU Vs. HATKISHORE SAHU

JUDGEMENT

(1.) Plaintiff's case may be stated in short. The disputed properties consist of A and B Schedule of the plaint. Schedule A is homestead and comprises 0.13 acre in Khata No. 173 in village Balianta, Sch. B consists of agricultural lands with an area of 1.07 acres in village Andilo, both the villages being in the district of Puri. The disputed properties belonged to one Chintamani Sahu who died in 1931 leaving behind a widow, Tulasi who died in 1964. a son (defendant 3 and D.W. 9), and a daughter Durga whose son is Madhab (defendant 1 and D.W. 1). Tusarkant (defendant 2) is the son of defendant 1. Defendant 4 is the maternal uncle of defendant 3 and defendant 5 is the son of defendant 4. Though defendant 3 described himself as the adopted son of one Krushna Sahu, in fact he had not been adopted away. Defendant 3, describing himself as the son of Chintamani, executed a registered sale deed, Ext. 2, on 5-12-59 in respect of the disputed lands in favour of the minor, defendant 5. Tulasi without having any right, title or interest in the disputed properties executed a registered deed of gift (Ext. D) in respect of Sch. A land in favour of defendant 1 and a registered sale deed, (Ext. E) in respect of Sch. B land in favour of defendant 2 on 3-11-61. Plaintiff (P.W. 7) purchased the disputed properties by a registered sale deed, Ext. 3, from defendants 4 and 5 on 14-1-65. It was admitted in the plaint that despite the sale deed, Ext. 2, executed by defendant 3, possession of A Schedule land (homestead and house) continued with Tulasi and after her death, defendant 1 is in forcible possession thereof. Delivery of possession of B Schedule land was, however, given under Ext. 2, and defendants 4 and 5 remained in possession from 5-12-59 till they transferred the same to the plaintiff on 14-1-65 when the plaintiff came into possession thereof. The suit was filed on 21-1-65, a week after the execution of Ext. 3, for declaration of plaintiff's title to the disputed properties, for recovery of possession of Sch. A lands and for confirmation of possession of Sch. B lands, in the alternative for recovery of possession.

(2.) Defendants 1 and 2 filed a joint written statement and defendant 3 filed a separate written statement supporting the case of defendants 1 and 2. Defendant 5 filed a written statement also supporting the case of the contesting defendants. The case of the contesting defendants is that the original name of defendant 3 was Krushna. He was given away in adoption to another Krushna Sahu in 1943 whereafter his name was given as Madhusudan. There was dissension between defendant 3 and his wife which ultimately resulted in divorce. To screen the disputed properties from being proceeded against by the wife towards maintenance, a sham transaction was effected without consideration by executing Ext. 2 in favour of defendant 5 which did not convey any title in favour of the alleged vendee. Defendants 4 and 5 never took possession of the disputed properties under Ext. 2. After the adoption in 1943, Tulasi was the owner in possession of the disputed properties and title to the same passed to defendants 1 and 2 under Exts. D and E. Plaintiff, therefore, is not entitled to the reliefs claimed.

(3.) The learned trial court held that defendant 3 had been validly adopted away, and that after the adoption in 1943, the real heirs of Chintamani in respect of the disputed properties were Tulasi and her married daughter Durga, and that Ext. 2 conferred no title on defendant 5, and consequently the sale deed, Ext. 3, conferred no title on the plaintiff. He also held that Ext. 2 was executed in a nominal manner with an ulterior motive, and there was no intention of conferring any title on defendant 5. He held Exts. D and E to be genuine conferring valid title on defendants 1 and 2.