PHULMATI AGRAWAL Vs. NABIN KUMAR SAHU AND OTHERS

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Bargarh in Title Appeal No. 51/33 of 1997/2002. The respondent No. 1 as the plaintiff had filed the T.S. No. 10 of 1991 against the appellant and rest of the respondents for declaration of her right, title and interest over the suit land and confirmation of the possession thereon with further prayer for recovery of possession of the suit land, if so found to have been dispossessed during the suit as well as for permanent injunction.

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

(3.) The plaintiff's case is that the husband of the defendant No. 3 and father of the defendant Nos. 1 and 2 was the owner of the property in suit. On his death, defendant Nos. 1 to 3 succeeded to the same. It is stated that in order to meet the legal necessity, defendant No. 1 as the karta of the family along with his brother-defendant No. 2 sold away Ac 0.10 decimals of land under plot No. 1000 under khata No. 165 of mouza Kusunpuri to defendant No. 4 for consideration of Rs. 500/-. For the purpose necessary sale deed was executed and registered. The possession of the land sold under the said sale deed dated 03.04.1981 was delivered to the defendant No. 4 who remained in possession of the same as it's owner. Subsequently, he sold the said land to the plaintiff for consideration of Rs. 500/- by registered sale deed dated 12.11.1981 and accordingly, the plaintiff having purchased the suit land remained in possession of the same as its owner. It is alleged that in the year 1991, the defendants who have their land adjoining the suit land suddenly began digging on a portion of the suit land in order to lay foundation for the boundary wall. Thus, there being an encroachment over the suit land, the plaintiff protested. Then, it is stated that the defendants declared that they would refund the consideration amount and regain the possession. In view of the same, the proceeding under section 144 Cr.P.C. got instituted. However, again on 16.01.1991 despite of the protest of the plaintiff , the defendant started construction of a wall over the suit land, for which the suit was filed. The defendant No. 3, the widow of Totaram Agrawal and mother of defendant Nos. 1 and 2 only came forward to contest the suit by filing the written statement. Her sons who are the vendors so far as the sale of suit land is concerned have chosen to remain absent from the very beginning. The defendant No. 3 contested the suit stating that the defendant No. 1 was never the karta of the family and he had sold the landed property to defendant No. 4 for consideration and for legal necessity.