BIRAJA PRASAD RATH Vs. BANSIDHAR RATH

JUDGEMENT

(1.) This appeal is directed against the order dated 9.8.2002 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Misc. Case No.200 of 2002 arising out of Title Suit No.211 of 2002 rejecting an application filed by the appellant under Order 39, Rules 1 and 2 of the C.P.C. to restrain the defendant-respondent from interfering with the possession of the plaintiff-appellant over the suit land and/or alienating the suit land and/or changing the nature and character of the suit land till disposal of the suit.

(2.) The plaintiff has filed the suit for declaration of title, recovery of possession and for permanent injunction. The case of the plaintiff is that as per 1931 settlement, the suit land was recorded in the names of Ananda Chandra Rath and Daitari Rath, who are the two sons of Ananta Rath. Daitari Rath died in the year 1943 leaving behind his widow Malati Dibya as his only legal heir. Ananda also died in the year, 1955 without any issue. Malati Dibya, after death of both the brothers, became the exclusive owner in possession of the suit property after coming into force of the Hindu Succession Act, 1956. The further case of the plaintiff-appellant is that since Malati Dibya had no issue, she adopted plaintiff on 13.11.1969. In acknowledgement of such adoption, Malati Dibya also registered a gift deed on the same day in favour of the plaintiff. Malai Dibya died in the year 1987 and the plaintiff claims that he was in exclusive possession of the suit property thereafter. It is also the case of the plaintiff that the defendant-respondent who is an adjoining landowner attempted to take possession of the suit land forcibly and expressed that he had purchased he same. Upon inquiry, the plaintiff found that late Ananda Chandra Rath had executed a sale deed on 22.6.1943 in respect of the suit land in favour of Akuli Mishra and the defendant-respondent was claiming title on the basis of a registered sale deed in support of purchase of the suit land from the said Akuli Mishra. It is also the case of the plaintiff that the sale deed had been obtained from Ananda Chandra Rath by Akuli Mishra by committing fraud and forging the L.T.I. in the sale deed. On the above allegations, the plaintiff filed the suit and in the said suit, an application under Order 39, Rules 1 and 2 of the C.P.C. was also filed grant of injunction.

(3.) The defendant-respondent filed objection in the said Misc. Case stating therein that the suit is barred under the provisions of the Consolidation Act. According to the defendant-respondent, Daitari Rath died prior to 1943 leaving behind his widow Malati Dibya and his elder brother (Ananda). Ananda Chandra Rath as Karta of the family, to meet the legal necessity and with consent of Malati Dibya sold the suit property to one Akuli Mishra under a registered sale deed on 22.6.1943. Subsequently, Akuli Mishra while in possession of the suit property, sold the same to the defendant-respondent under a registered sale deed dated 13.2.1957 and, thereafter, the defendant-respondent is in possession of the suit property. It is also the case of the defendant-respondent that in the last settlement operation after service of notice on Malati Dibya, the suit land was recorded in the name of the defendant-respondent. In respect of some other lands belonging to Malati Dibya, the name of the defendant has been reflected in the R.O.R. as boundary landowner so far as it relates to the suit land. The adoption of plaintiff by Malati Dibya was disputed and it was contended that Ananda Chandra Rath having sold the property as Karta of the family in favour of Akauli Mishra for legal necessity, the same cannot be challenged on the ground of fraud and Akuli Mishra having sold the disputed property to the defendant-respondent under a registered sale deed and having delivered possession of the same, it can never be said that the plaintiff was in possession of the suit property.