PRAVAKAR DAS AND ORS. Vs. SUBAL PADHAN

JUDGEMENT

(1.) THIS is an appeal by the Plaintiffs against a reversing judgment of the Subordinate Judge, Cut tack in a suit for declaration of title, confirmation of possession, and, in the alternative, for recovery of possession. Nidhi and Kina were two brothers being sons of one Panu Das. Kina 's sons were Hari and Gouranga, As Nidhi had no son, he had adopted Hari, Plaintiff No. 1 Pravakar is Hari 's son. Gouranga died in the years 1929 leaving behind his widow Kanchan, but, no issues. Kina died in the year 1940. During the life time of Nidhi and Kina they had, separated from each other. The property in dispute in this litigation was admittedly self acquired property of Kina.

(2.) ON 25 -11 -1954, Kanchan executed the Kabala Ext. A, in respect of the disputed property in favour of Respondent Subal Padhan. It was recited in the sale deed that the sale was ,necessary to procure, funds to discharge certain debts which Kina had incurred and also for her own maintenance. Shortly before the execution of Ext. A and at a time when Kanchan was still alive, Appellant No. 1 Pravakar alleging that he has become ,entitled to the disputed property executed two sale deeds in respect of portions thereof (Exts. 1/a and 2/a) in favour of Appellants 2 and 3. As these two Appellants created disturbance in possession of the Respondent, there was, a proceeding under Section 145, Code of Criminal Procedure, between the Respondent on one side and Appellants 2 and 3 on the other. That proceeding terminated in favour of Appellants 2 and 3. The Respondent Subal there upon instituted Title Suit No. 320 of 1959 against all the three Appellants for declaration of his title to the disputed property on the ground that he had purchased the property from ' the limited owner Kanchan who executed the sale deed for legal necessity. That trial Court found inter alia that there was legal necessity for Kanchan to execute the sale deed Ex. A, and consequently Subal acquired a valid title to the disputed property. He, therefore, held that Exts. 1/a and is executed by Appellant No. 1 in favour of Appellants 3 and 2 respectively, were invalid and inoperative. He accordingly passed a decree in favour of Plaintiff Subal Padhan (Respondent in this case). On appeal (T.A. 10/107 of 1964) the appellate Court held inter alia that Appellant No. 1 being not a party to the proceeding under Section 145, Code of Criminal Procedure, he was not a necessary party to the suit and therefore dismissed the suit as against the present Appellant No. 1 In these circumstances, he did not consider necessary to discuss the evidence regarding the existence or otherwise of any legal necessity for Kanchan to execute the sale deed Ext. A. That appeal was disposed of on 5 -7 -1965 and shortly thereafter the suit giving rise to this appeal was field.

(3.) IT is the common case of the parties that unless it is established that the sale deed Ext. A was executed by Kanchan for legal necessity, Respondent Subal would not acquire a valid title to the disputed property. Kanchan died in the year 1955 and it is not disputes that thereafter Appellant No. 1 Pravakar would succeed to all the properties left by Kanchan as the sole reversioner. No serious attempt had been made on behalf of the Respondent to establish that besides repaying the loans said to have been incurred by Kina, Kanchan required money for her maintenance.