HRUDANANDA PANDA Vs. DHIRENDRA BEHURA

JUDGEMENT

(1.) Challenge in this Civil Revision is to the order of the learned Second Munsif, Cuttack, passed in T.S. No. 118 of 1982 deciding Issues Nos. 1 and 2 in favour of the plaintiff.

(2.) The plaintiff-opposite party filed the suit for declaration of title to and confirmation or, in the alternative, recovery of possession of the suit lands described in Schedule 'A' of the plaint. The suit lands belonged to one Karunakar Behera who died in November, 1949 leaving behind him his widow Kuntala Bewa, a son (the plaintiff in the suit) and two daughters. Kuntala Bewa filed T. S. No. 10/55 against the plaintiff for partition of the family properties. That suit stood abated on 3-7-1974 under S.4(4) Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Act'). Kuntala Bewa died in December, 1976. Before her death, she had sold a portion of the suit lands in favour of defendant 1 by a registered sale deed dt/- 21-9-1972. The plaintiff had also sold the remaining portion of the suit lands in favour of defendant 2 by a registered sale deed d/- 23-8-1969. The plaintiff filed the present suit on 7-8-1982 for the aforesaid reliefs contending that his two sisters having relinquished their interests in his favour he has become absolute owner in respect of the suit lands. It was alleged that the two sale deeds executed by him and his mother on 23-8-1969 and 21-9-1972 were nominal deeds and no consideration had passed thereunder, and that possession of the lands had not been delivered in favour of defendants 1 and 2. The defendants on the strength of the nominal sale deeds managed to get their names recorded in respect of the suit lands during the consolidation operation though the plaintiff continues to be in peaceful possession of the same. Notification under S.41 of the Act in respect of the suit village was issued on 12-5-1982 and the consolidation operation was closed with effect from that date. The defendants on the strength of wrong recording of their names during the consolidation operation threatened to forcibly dispossess the plaintiff from the suit lands and hence he filed the suit for the aforesaid reliefs.

(3.) The defendants filed a joint written statement contending, inter alia, that they had acquired valid title to the suit lands by virtue of the sale deeds executed in their favour by the plaintiff and his mother and that they were in possession of the same. It was alleged that during the last consolidation operation the defendants filed applications before the consolidation authorities for recording their names in respect of the suit lands and those applications were numbered as objection Cases Nos. 70 and 71 wherein the plaintiff filed counter contending that the sale deeds D/-23-8-1969 and 21-9-1972 were benami transactions and did not convey any title in favour of the defendants. He accordingly prayed for recording the suit lands in his name. The consolidation Officer came to the finding that the sale deeds were benam transactions and upon such finding he dismissed the applications filed by the defendants. Against the order of such dismissal the defendants preferred appeals before the Deputy Director of Consolidation which were numbered as Appeals Nos. 73 and 74 of 1978. The appellate authority reversed the decision of the Consolidation Officer holding that the sale deeds were not benami transactions. Aggrieved by this order, the plaintiff preferred a revisional application before the Commissioner of Consolidation which was registered as Revision No. 222 of 1978. The Commissioner upheld the decision of the appellate authority and dismissed the revision on 1-2-1980. Upon these averments, the defendants contended that the question of title to the suit lands having been already decided by the consolidation authorities, the present suit was barred by res judicata and that the suit was not maintainable in law.