GANDA DALAI (DEAD) HIS LRS. RAMAKRUSHNA DALAI AND OTHERS Vs. KARTIK BEHERA (DEAD) HIS LRS. SATRUGHANA BEHERA AND OTHERS

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Bolangir in Title Appeal No. 142/12 of 1990/1992. By the said judgment and decree, the learned Additional District Judge had set aside the judgment and decree passed by the learned Munsif, Bolangir (as it was then) in Title Suit No. 218 of 1982. The trial court had dismissed the suit of the plaintiff-appellant and on appeal, the lower appellate court while setting aside the said order of dismissal of the suit has decreed the same declaring the right, title, interest and possession of the plaintiff- appellant in respect of suit land described in Schedule-B of the plaint. So, being aggrieved by the said judgment and decree, the respondent no. 2 of the lower appellate court has filed this appeal arraigning the plaintiff as the respondent no. 1 and the original defendant no. 1 as the respondent no. 2.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the court below.

(3.) The case of the plaintiffs is that the suit land along with other lands originally belonged to his father Dibakar Behera who had got his raiyati right over the same in Bhogra conversion proceeding and accordingly raiyati patta had been granted in respect of land under Sabik holding number 6/5. Dibakar died leaving behind three sons and the plaintiff Kartik is one of them. The other two brothers are Bhima and Arjuna. Dibakar is said to have died in the year 1953, and his wife and son Bhima had pre-deceased him. So, on the death of Dibakar, the property got devolved upon Arjun and the plaintiff. It is stated that in the year 1953 Arjun and the plaintiff went for an amicable partition between them. In the said partition, 'A' Schedule lands which includes the land described in Schedule - B of the plaint fell to the share of the plaintiff. However, both the brothers though remained in separate possession in respect of their shares over the cultivable lands, their ancestral residential house and the homestead remained joint, though they possessed portions of the same according to their convenience. Arjun had three daughters namely, Benga, Ghuni and Suna. Defendant no. 1 is the husband of Suna and he died in the year 1972 where after Arjun died in the year 1974. It is alleged that when the plaintiff was continuing to possess Schedule-B land as such since time of amicable of partition, the defendant no. 2 suddenly threatened to dispossess him claiming to have purchased the suit land from defendant no. 1 on 24.02.1982 by registered sale-deed for an agreed consideration of Rs.3,000.00. The plaintiff, then also came to learn that defendant no. 1 claimed that the Schedule B had been given to him by Arjun under a Will. It is stated that Arjun had absolutely no power to bequeath the said property in favour of the defendant no. 1 by executing the said Will. So the defendant no. 1 according to the case of the plaintiff has got no right, title and interest over the same. The sale-deed executed by him in favour of defendant no. 2 is said to have conveyed no title in respect of that land in favour of said defendant no. 2. The Will as well as sale-deed are attacked as sham and fictitious documents without any necessity and also without consideration.