SITARAM NAI Vs. PURANMAL SONAR

JUDGEMENT

(1.) Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No. 13 of 1966. The plaintiff filed the suit for a declaration of his right, title and interest over the Schedule-A property and for recovery of possession from defendant No. 1.

(2.) According to the plaint case, Holding No. 104 in Ward No. 6 of Sambalpur Town was purchased under two sale deeds registered on 5-3-1929 in equal shares, one by Panaram (father of the plaintiff) and Chouthmal (brother of the plaintiff) and the other by Bhairuram and his son Baluram and they have been in possession of the same ever since the date of their purchase. In 1929, the house standing on the plot was reconstructed by submission of a joint plan. Baluram died in 1962 without any heir. One Mani De in execution of a decree in Execution Case No. 83 of 1962 attached the entire property for payment of his decretal dues against defendant No. 2 who is son of Raghunath, brother of the plaintiff's father Panaram. Defendant No. 2 sold a portion of the house marked red in the map attached to the plaint to defendant No. 1 under a registered sale deed dated 22-12-1965 representing that he was the adopted son of late Baluram. According to the plaint case, the so-called adoption is not a fact and, therefore, the plaintiff along with defendants 2 to 4 are the legal heirs of late Baluram. It was also pleaded in the plaint that defendant No. 2 under the sale deed in favour of defendant No. 1 transferred more area than what Baluram had purchased under the registered sale deed of 1929 and, therefore, to that excess extent the sale in favour of defendant No. 1 was void. On these averments, the suit was filed for the reliefs as aforesaid.

(3.) Defendants 1 and 2 contested the suit. Defendant No. 1 denied the allegations made in the plaint and asserted that defendant No. 2 was the adopted son of late Baluram and was universally recognised by all as such. It was also pleaded that defendant No. 2 being the adopted son of Baluram transferred his interest for value and he never transferred anything more than what Baluram had purchased. On these averments, it was prayed that the suit was liable to be dismissed. Defendant No. 2 in his written statement categorically took the stand that he was the adopted son of late Baluram the adoption having been taken place long before, according to the prevailing caste custom and he had been accepted and treated as such by the society and the entire world. The sale by him in favour of defendant No. 1 on 20th December, 1965, was the exclusive property of his father late Baluram which on his death devolved upon defendant No. 2. It was also stated that the property had been attached in Execution Case No. 83 of 1962 in execution of a decree against late Baluram and in the said execution case on the death of Baluram, defendant No. 2 was substituted and to satisfy the decree of the said execution case, defendant No. 2 conveyed the property to defendant No. 1 under the sale deed executed on 28th December, 1965, and, therefore, the suit was liable to be dismissed. Though defendant No. 2 had filed the written statement as aforesaid, he did not contest the suit during trial and defendant No. 1 alone contested the suit.