NIRAKAR DAS Vs. GOURHARI DAS

JUDGEMENT

(1.) Nirakar Das, plaintiff No. 1 having failed to get relief in the Courts of Munsif, Kendrapara, and Subordinate Judge, Kendrapara, has filed this second appeal.

(2.) His case in brief is as follows : One Kelei alias Kinu Das, husband of Kanchan Dibya, defendant No. 3 sold A0.04 decimals of land from northern portion of the suit plot measuring A0.10 decimals of which he was the owner to defendants Nos. 1 and 2, Gourhari and Bansidhar, who are respondents Nos. 1 and 2 respectively in this appeal. On rest A0.06 decimals of land to the southern portion of the suit plot, a house is standing. Kinu died in the year 1967 leaving behind his widow Kanchan. She transferred the said A0.06 decimals of land along with the house standing thereon, and some other land over which there is no dispute in favour of plaintiff No. 1, and Brahmananda Das and Kalpataru Das, plaintiffs Nos. 2 and 3 (pro forma respondents Nos. 4 and 5 in this appeal) on 8-12-1976 for a consideration of Rs. 1,000/-, and delivered possession of the property to the vendees. Since defendants Nos. 1 and 2 tried to create disturbance over the possession of the plaintiffs by filing of the suit for partition, demarcation of their share of A0.06 decimals with house by a Civil Court Commissioner, and delivery of separate possession was necessary. Gourhari and Bansidhar filed a joint written statement. According to them, about six months after her marriage Kanchan deserted Kinu as the latter was suffering from leprosy, and led an immoral life as a concubine. They had purchased A0.04 decimals from Kinu. On 3-12-1964 an unregistered deed of agreement to sell A0.05 decimals of land was executed by Kinu for which consideration was fixed at Rs. 500/-. Possession was also delivered and since 3-12-1964 they were in possession uninterruptedly to the knowledge of the plaintiffs openly, peacefully without any interruption and having continued for more than the statutory period of 12 years, had acquired title by adverse possession. In the current settlement records the disputed plot has been recorded in their names and they have got the parchas and are paying rent. Defendant No. 3 has no subsisting interest in respect of the disputed plot after death of her husband and the sale deed executed by her is fraudulent, and did not convey title to the plaintiffs in any manner.

(3.) The Courts below essentially arrived at two conclusions. Firstly it was held that since 3-12-1964 defendants 1 and 2 were in possession and by the time of execution of sale deed on 8-12-1976, twelve years had elapsed, and therefore, they had acquired title by adverse possession by the time of execution of the sale deed. Secondly, it was held that the evidence established that the sale deed was invalid because Kanchan had no transferable right to be conveyed by sale.