SANATAN MOHANTY Vs. BAIDHAR ROUT

JUDGEMENT

(1.) The unsuccessful plaintiffs have filed this appeal against the affirming judgment of the learned Subordinate Judge, Bhadrak. The dispute relates to Ac.0.11 decimals of agricultural lands on the western side of Plot No. 2205 with an area of Ac.0.21 decimals appertaining to khata No. 89 in Mouza Tilo.

(2.) The two plaintiffs are brothers. The plaint case is that defendant No.2 was the owner in possession of the disputed land and Ac.0.06 decimals of land situated to the west of Plot No. 2203 with an area of Ac.0.14 decimals. On 20-2-1956 defendant No. 2 sold the aforesaid lands to defendant No. 3 by a registered deed of sale for a consideration of Rs.120.00 and the latter took over possession of the said land as the owner from the date of his purchase. On 20-9-1971 defendant No.3 sold the aforesaid lands and other lands comprising a total area of Ac.0. 55 decimals to the plaintiffs by a registered deed to sell for a consideration of Rs.2,500.00 and since the date of their purchase the plaintiffs became the owners in possession of the lands conveyed under their sale deed. In the Major Settlement in 1969, Ac.0.06 decimals of land appertaining to Plot No.2203 was recorded in the name of defendant No.3, but Ac.0.11 decimals of land appertaining to Plot No.2205, which is the subject-matter of the present dispute, was wrongly recorded in the name of defendant No.2 although the latter had no subsisting title or possession thereof after his sale in favour of defendant No. 3 on 20-2-1956. After their purchase the plaintiffs applied to the Assistant Consolidation Officer for mutation of their names in respect of the lands including the disputed land purchased by them from defendant No.3 on 20-9-1971. At that time defendant No.1 also filed an application for mutation in respect of the disputed land on the strength of a registered sale deed alleged to have been executed in his favour by defendant No.2 on 19-5-1972. Plaintiffs allege that the so-called sale-deed dated 19-5-1972 in favour of defendant No. 1 was void and without consideration and no title had passed to defendant No. 1 on the basis of the said sale-deed as defendant No. 2 did not have subsisting title or possession on the date of the sale. However, the Assistant Consolidation Officer allowed mutation in favour of defendant No.1 and being emboldened by the said order of mutation, defendant No.1 threatened to dispossess the plaintiffs from the disputed land. In these circumstances the plaintiffs filed the present suit for declaration of title to the disputed land, also for declaration that the order of the Assistant Consolidation Officer was illegal and that the sale-deed executed by defendant No. 2 in favour of defendant No. 1 was void, for confirmation of possession, in the alternative, for recovery of possession and for permanent injunction.

(3.) Defendants 1 and 2 entered contest and filed separate written statements. Defendant No.3 did not appear and was set ex parte by order dated 3-12-1974 of the trial Court. According to defendants 1 and 2, the plaintiffs had not acquired title or possession in respect of the disputed land by virtue of the registered sale-deed dated 20-9-1971 as defendant No.2 had sold to defendant No. 3 only Ac.0.06 decimals of land appertaining to Plot No.2203 and not Ac.0.11 decimals of land, the subject-matter of the present dispute, under the sale-deed dated 20-2-1956. The disputed land was fraudulently included in the sale-deed dated 20-2-1956 which was scribed in English. The contents of the deed were not read over and explained to defendant No.2 who was an illiterate person unfamiliar with the English language. Defendant No. 2 had remained in possession of the disputed land all throughout until 19-5-1972 when he sold the said land to defendant No. 1 and since then defendant No. 1 has remained in possession of the same. Accordingly, the defendants have prayed that the plaintiffs' suit should be dismissed.