GUREI BEWA Vs. PABITRA ROUT

JUDGEMENT

(1.) A brief narration of the facts leading to the present application is that the petitioners as plaintiffs filed O. S. No. 39/64 -1 in the Court of the Munsif, Nayagarh, for sitting aside two sale deeds, one dated 14 -9 -62 in favour of defendant No. 1 and the other dated 21 -1 -63 in favour of defendant No. 2, both executed by defendant No. 3, the paternal uncle of the minor plaintiffs 2 and 3, petitioners 2 and 3 herein. Defendant No. 1 did not contest the suit. Defendant No. 2 appeared and contested. The suit was for the following reliefs.

(2.) MR . P.K. Misra, the learned counsel appearing on behalf of opposite -party No. 7, submits that in the operative part of the decree there is no specific order about recovery of possession of the suit property. If the petitioners were aggrieved for non -incorporation of such a direction, they could have filed an appeal. The further contention of the learned counsel is that the present application is barred by limitation because the petitioners did not take staps in the matter within the period of limitation. Having gone through the entire matter and in view of the facts stated above, no one should be in doubt that the learned Munsif has held that the plaintiffs are entitled to all the reliefs they have claimed. Besides, in the prayer portion which I have already noted above, the plaintiffs made a specific prayer for recovery of possession of the suit property. The learned trial Court having held that plaintiffs were entitled to all the reliefs they claimed, non -incorporation of a specific direction for recovery of possession in the operative part of the decree was merely accidental. On a perusal of the judgment in the second appeal, it is clear that the learned Single Judge proceeded on the basis that all the reliefs claimed were decreed by the trial Court and affirmed by the first appellate Court and he dismissed the second appeal only with a direction for refund of the consideration money of Rs. 380/ -by the defendant No. 3. In view of the above factual situation, I find that both in the judgment and the decree, the learned trial Court should have incorporated a direction for recovery of possession of the suit property, the suit having been fully decreed.

(3.) IN the result, the M. J. C. is allowed. The trial Court is directed to amend the judgment and the decree by incorporating therein a direction that the plaintiffs are entitled to recovery of possession of the Suit property from defendant No. 2. No costs.