JAYADEB SWAIN Vs. SANTHA BEHERA

JUDGEMENT

(1.) The Judgment and decree in Title Appeal No, 18 of 1982-I of the Court of Subordinate Judge. Bhadrak has been assailed in this appeal.

(2.) The present respondent No. 1 as plaintiff filed O.S. No. 183 of 1978-I in the Court of Munsif, Bhadrak seeking declaration of title, confirmation of possession and other consequential reliefs in respect of the &uit property. His case in brief was that one Anadi Ojha. father of defendants, 1. 2 and 4 to 7 and husband of defendant No. 3, purchased the suit land from out of Joint family funds on 17-2 1947 through a registered sale deed (Ext. 3); whereupon the said Anadi, his sons defendants 1 and 2 each earned 1/3rd share in that property. On the death of Anadi his 1/3rd share was succeeded by his heirs defendants 1 to 7. After death of Anadi defendant No. 1 being the eldest son became the Karta of Joint family and managed the affairs of the family. In order to repay some joint family loan and maintain the family he sold the suit land to the plaintiff on 22-7-1978 for a consideration of Rs. 2000/ under a registered sale deed, Ext. 1 and defendant No. 2. the other male heir of the joint family became the co-executant of that sale deed. After the said purchase the plaintiff took delivery of possession of the suit land and raised paddy crops over the same, but after some time he found that Plot No. 539 under Khata No. 23 measuring Ac. 1.22 dec. had been wrongly mentioned in the sale deed though the land purchased corresponds to Plot No. 538 appertaining to Khata No. 123 measuring Ac. 1.12 decimals. He, therefore, asked defendants 1 and 2 to ratify the mistake in the sale deed by executing a deed of ratification. Though the defendant Nos. 1 and 2 agreed to execute a deed of ratification, yet they deferred the matter on various pretexts. When the matter stood thus, defendant No. 8 suddenly challenged the title of the plaintiff over the suit land claiming that he purchased the suit land from wife of late Anadi Ojha (defendant No. 3) on 27-10-1978; as a result, plaintiff had to file the suit seeking the aforementioned reliefs. It was also pleaded that defendants 3 to 7 had no saleable right over the suit land on 27-10-1978 as the suit land had already been sold to him by defendant Nos. 1 and 2 for legal necessity of the joint family.

(3.) Defendant No. 8, who is the sole appellant in the present appeal, contested the suit asserting that defendant No. 1 was not the Karta of the joint family and that there was no legal necessity for sale of the suit land to the plaintiff. According to him, defendants 1 and 2 were separate from their father Anadi during the lifetime of Anadi and had no interest over the suit property. He claimed that the defendants 3 to 7 inherited the suit property, possessed the same and defendant No. 3 sold the suit land to him on 27-10-1978 for valid consideration to meet the expenses of the marriage of defendant No. 7 and accordingly, he has acquired title and possession over the said land. Defendant No. 8 claimed that the sale in favour of the plaintiff was a sham transaction without consideration and, therefore, no title passed to the plaintiff.