BRUNDABAN SAHU Vs. CHAITANYA SAHU AND ORS.

JUDGEMENT

(1.) THE Petitioner has preferred this appeal against the judgment and decree passed by the Additional District Judge, Puri, in Title Appeal No. 17/74 of 1971/70, reversing the decision of the Subordinate Judge, Bbubaneswar in Original Suit No. 14/69 -1.

(2.) THE Petitioner 's case in short is that Defendants 2 and 3 are two brothers and they partitioned their family properties amicably in 1952 and in that partition Defendant No. 3 got 71 decimals of land on the north -west corner of plot No. 204 and possessed the same exclusively along with the 121 decimals of land which he purchased from another person by a registered sale deed dated 1 -4 -1953. The said 121 decimals of land in course of time increased to an area of 14 decimals and the aforesaid 71/2 decimals of land diminished to 6 decimals. Defendant No. 3 thus owned and possessed 20 decimals of land in plot No. 204. The Petitioner purchased the said 20 decimals of land from Defendant No. 3 for Rs. 2500/ - by a registered, sale deed dated 17 -2 -1969. Defendant No. 1, being in inimical terms with the Petitioner, fraudulently obtained from Defendant No. 2 a nominal sale deed for 10 decimals of land on 21 -3 -1969, out of the above -mentioned 20 decimals of land owned and possessed by Defendant No. 3. Defendant No. 2 on realising his mistake in selling lands belonging to Defendant No. 3 to Defendant No. 1, cancelled the said sale deed on 25 -3 -1969. But even then Defendant No. 1, on the purported exercise of his right under the sale deed dated 21 -3 -1969, threatened the Petitioner and demolished the boundary wall raised by the Petitioner on the suit land. Hence this suit by the Petitioner for declaration of his title to and confirmation or in the alternative for recovery of possession of the suit land as specifically described in the schedule and the sketch map attached to the plaint. The Petitioner has also prayed for a permanent injunction restraining Defendant No. 1 from interfering with the Petitioner 's possession.

(3.) THE trial Court held that there was a partition between Defendants 2 and 3 in 1965. With regard to the Petitioner 's claim that he exclusively purchased the aforesaid 12 1/2 decimals of land on 1 -4 -1953, it held that the said land was purchased in the name of Defendant No. 3 out of the joint family funds of Defendants 2 and 3, and that the same was acquired before the partition between the two brothers and it was then treated as a joint family property. It also held that the suit property fell to the share of Defendant No. 3 in the family partition between the two brothers in 1965, and so the Petitioner by purchasing the said property from Defendant No. 3 acquired good right, title and interest in the suit property. On the above findings, the trial Court declared the Petitioner 's right, title and interest over the suit property and directed Defendant No. 1 to vacate possession of the suit land in favour of the Petitioner, and on his failure to do so, it decreed, that the Petitioner would recover possession of the suit property through Court. Defendant No. 1 was permanently restrained from interfering with the Petitioner 's possession of the suit land.