SEETARAMASWAMY Vs. NARASINGHA PANDA

JUDGEMENT

(1.) This is an appeal against the appellate judgment of R. N. Misra, J. in First Appeal No. 63 of 1964 confirming the judgment and decree passed by the Subordinate Judge, Jeypore in a suit for recovery of possession of the plaint 'A' schedule properties, mesne profits and cancellation of the Deed of Exchange Ext, A dated 28-3-1957.

(2.) Plaintiffs 2 to 5 are sons of plaintiff No. 1. The plaintiffs constitute a joint family and are the owners in possession of the plaint A schedule lands measuring A.22.36 decs. situated in mouza Barijhola. Out of these lands, they were in khas possession of plot Nos. 80, 87, 90 and 98 with an area of 6.11 acres. The remaining lands bearing plot Nos. 292, 293 and 294 were with the Jeypore Sugar Company, Limited under possessory mortgage for a period of 12 years commencing from 11-5-1955. One Rajguru family who are not parties to this litigation own lands in village Pitamahal which was an inam village. That inam estate was abolished under the Orissa Estates Abolition Act, 1951 ,(Act I of 1952) on 1-4-1954. Some of the co-sharers of the Rajguru family under a registered sale deed Ext. 3 dated 4-4-1956 sold lands covered under various survey numbers to the defendant for Rs. 6000/-. Some of the plots which were included in the sale deed were under a possessory mortgage with one Seetaramaswamy Kumandan of Rayagada. The plaint 'A' schedule lands were fit for sugar-cane cultivation and the defendant who was a sugar-cane grower was interested to take the 'A' schedule lands. He, therefore, prevailed upon plaintiff No. 1 who was the Kanta of the joint family of the plaintiffs to exchange his plaint 'A' schedule lands with the plaint 'B' schedule lands which the defendant stated belonged to him as having been purchased from Rajguru family. The defendant told plaintiff No. 1 that out of the plaint 'B' schedule lands with an area of about 25 acres, 'C' schedule lands measuring about 20 acres were under possessory mortgage with Seetaramaswamy Kumandan of Rayagada and that the balance of about 5 acres described in Schedule 'D' were in khas possession of defendant himself. It was represented to plaintiff No. 1 by the defendant that as the 'B' schedule lands were paddy yielding lands they would be more useful to the plaintiffs than the 'A' Schedule lands which were fit for sugarcane cultivation and as such would be more useful to the defendant. The further arrangement between the parties was that plaintiff No. 1 would redeem the 16 acres and odd of lands mortgaged by him with the Jeypore Sugar Company in 1967 and deliver possession thereof to the defendant and that the defendant would redeem the mortgage of the 'C' schedule lands from Seetaramaswamy and deliver possession of the same to the plaintiff by 2-7-1959. Plaintiff No. 1 believed in the various representations made to him by the defendant and the Deed of Exchange Ext. A was executed and registered on 28-3-1957. The plaintiffs' 'A' schedule lands were valued at Rs. 7,500/- and the defendant's 'B' schedule lands were valued at Rs. 6760.00. A show of payment of Rs. 740/- to the plaintiff No. 1 was made before the Sub-Registrar representing the difference between the price, but in reality, the defendant executed a promissory note for Rs. 976/- in favour of plaintiff No. 1 to cover the difference in price plus Rupees 236/- which he borrowed from plaintiff No. 1. It was described in the Deed of Exchange that the parties would get absolute rights in the lands obtained by exchange and the title deeds which were referred to in the Deed of Exchange would be delivered to the plaintiffs. But no such documents were delivered. Although plaintiff No. 1 gave possession to the defendant of the 6.11 acres of land of which plaintiff No. 1 was in khas possession, the defendant did not deliver to the plaintiff No. 1 possession of the 'D' schedule lands which he represented to be in his khas possession. On the other hand, the defendant prevailed upon the plaintiffs to lease out the 'D' schedule lands to him for three years from 1967 to 1969 and accordingly the lands were leased out to the defendant under the registered lease deed Ext. 3 dated 28-3-1957. The defendant failed to redeem the 'C' schedule lands which were under mortgage with Kumandan. The defendant did not also pay to the plaintiffs the rent stipulated under the lease deed Ext. 3 and when after the expiry of the period fixed in the lease deed, plaintiff No. 1 went to take khas possession of the 'C' schedule property, he was resisted by Bidika Jagli and others who claimed tenants' rights therein. On 28-7-1960, plaintiff No. 1 called upon the defendant to cancel the deed of exchange. On 22-9-1960 the defendant replied asserting that the Deed of Exchange was valid and called upon the plaintiffs to join him as co-plaintiffs in a suit for redemption against Kumandan. The plaintiff No. 1 signified his consent but the defendant failed to take further steps for redeeming the mortgage. Thus the defendant enjoyed khas possession of 6.11 acres of land which the plaintiff No. 1 had delivered to him, but the plaintiffs did not get corresponding benefit. It is in these circumstances that the plaintiffs filed the suit giving rise to this appeal for cancellation of the Deed of Exchange on various grounds including want of title in the defendant in the plaint 'B' schedule lands and also claimed mesne profits in respect of the 6.11 acres of land for a period of 3 years at the rate of Rs. 300/- per year.

(3.) The defence was that plaintiff No. 1 was fully aware of all the aspects in respect of the 'B' schedule lands before the Deed of Exchange Ext. A was executed. He asserted that khas possession of the plaint 'D' schedule lands was given to the plaintiffs and it is only after receiving delivery of possession that plaintiff No. 1 had given the lands on lease to the defendant for three years. The defendant further stated that he wanted to file a redemption suit against Kumandan but plaintiff No. 1 did not join him as co-plaintiff and as such the suit could not be filed. He denied the plaintiffs' allegation that the promissory note in question represented the difference of the price. It was suggested in the written statement that the plaintiffs wanted to back out from the transaction of exchange on account of the fact that their lands in Barijhola village which were given in exchange to the defendant had in the year 1960 received the advantage of lift irrigation facilities. The learned Subordinate Judge who tried the suit held that the Deed of Exchange was vitiated by fraud and misrepresentation and was not valid and binding on the plaintiffs. He found that the defendant's vendors had no full title to the properties conveyed to the defendant under the sale deed Ext. 13 dated 4-4-1956 and that the defendant had no title to the lands in Sch. C mortgaged to Kumandan. In respect of the other lands, namely, plaint Sch. 'D' lands, the defendant had at no time delivered possession thereof to the plaintiffs. In the circumstances, the Deed of Exchange turned out to be void and liable to be cancelled. So far as the claim of mesne profits is concerned, the Court held that the claim of Rs. 300/-per year is not at all excessive. In the result, he passed a decree cancelling the Deed of Exchange and directing the defendant to deliver possession of the A schedule lands to the plaintiffs and to further pay a sum of Rs. 900/- towards mesne profits.