KISHORILAL AGRAWALLA Vs. JUGAL KISHORE AGRAWALLA

JUDGEMENT

(1.) Both these appeals arise from the judgment and decree passed by the learned Additional District Judge, Bargarh in Title Appeal No. 40/2 of 1988 -89 allowing the appeal in part and thereby decreeing plaintiff's right and title only over the Schedule -B land and confirming his possession thereon followed by the direction to the defendants to give vacant possession of the same to the plaintiff within one month with liberty to the plaintiff to proceed in accordance with law for the same, if not so delivered. The above noted appeal under section 96 of the Code of Civil Procedure was filed by the unsuccessful defendants in the court of learned Subordinate Judge, Padmapur in Title Suit No. 130 of 1986. The trial court had decreed the suit declaring plaintiff's right, title and interest over the Schedule -A land and directing delivery of vacant possession to be given to the plaintiff in respect of the Schedule C and D land. It may be stated here that the land described in Schedule -A of the plaint is the total land over which the plaintiff had sought for the relief of declaration of right, title and interest and the Schedule -B is a part of it over which there remains no prayer in specific. The land described in Schedule C and D which are the part of and within the Schedule -B land. With respect to the schedule C and D lands prayer was for eviction of the defendants. The trial court had decreed the suit granting the reliefa to the plaintiff as prayed for. The lower appellate court has granted the relief to the plaintiff in respect of Schedule -B land by way of declaration of his right, title, interest and also for vacant possession of the same. This has led the defendant no.1 to file this Second Appeal No. 50 of 1991. Being aggrieved by the judgment and decree of the lower appellate court, the plaintiff has also filed Second Appeal No. 54 of 1991 in declining the relief in respect of Schedule A land.

(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 trial court.

(3.) The plaintiff's case is that Kishorilal Agrawala, the original defendant no.1 is his maternal uncle. It is the appropriate stage to state that after death of said original defendant no.1, his legal representatives being made parties are now pursuing the appeal. One Jagannath Agrawala, the husband of the defendant no.5 is his elder father. It is stated that the father of the plaintiff and defendant no.1 and that Jagannath were having good relationship and in view of that relationship, the father of the plaintiff namely, Changilal Agrawala had purchased the land described in Schedule -A of the plaint from one Gagan Bihari Barik of Jhungapali by registered sale deed benami in the name of defendant no.1 and Jagannath. It is further stated that the father of the plaintiff avoided to go for said purchase in his name as an insolvency proceeding was pending against him, thus remaining with the apprehension that lest the purchase if so made, the said property might pass to the hands of the creditors. The sale deed is dated 03.10.1961 which has been admitted in evidence and marked as Ext.13. It is the further case of the plaintiff that the consideration money of Rs.1500/ - was entirely paid by Changilal to the vendor who had delivered possession of the suit land to Changilal and had authorized Changilal to receive the original sale deed from the registration office. Thus it is said that for all purposes, Changilal is the real owner and defendant no.1 and Jagannath are merely the name lenders without being in enjoyment of the property in any way at any point of time. The plaintiff claims that as dissension arose in his family, his father had allotted the suit land in his share and separated himself. So, he shifted to Diptipur and began to possess the suit land by constructing a shed over it in the year 1962 and carried on his business there. It is also stated that thereafter he constructed a big house on a side as shown in Schedule -C of the plaint with the map attached to it. The construction having commenced in the year 1970, got completed in the year 1973. However, thereafter the plaintiff shifted and so he rented out the old shed to the defendant no.7 who remained in occupation of the same as a monthly tenant. It is next stated that the plaintiff approached the defendant no.1 as well as Jagannath for executing the sale deed in his name in respect of the suit land so as to regularize the matter, since it was his father who had made the benemai transaction in their names. It is stated that Jagannath acceded to said request and accordingly executed the sale deed on 29.12.1972 in favour of the plaintiff in respect of portion of the schedule -A as described in Schedule B of the plaint and thus the plaintiff constructed his house and well over it whereas the defendant no.1 did not respond to such call. It is further stated that none of the defendants ever possessed the suit land at any point of time and this Jagannath was all along residing in the village at Melchhamunda and when he was compelled to leave the village was allowed to occupy a portion of the suit house in view of their relationship. Jagannath died in the year 1974 and after his death, defendant no.5 continued to occupy the said portion. However as ill luck would have it, the plaintiff lost his two sons one in an accidental incident of drowning and the other one in a motor accident. For this his wife lost mental balance. Thus they ultimately decided to leave the place for an immediate change. Accordingly, they left the said village entrusting Jagannath to look after all the properties there. It is stated that the plaintiff was all along paying the rent and in the settlement operation, the record has been prepared in the name of the plaintiff and the defendant no.1 although he had no title. Alternatively, it is stated that the plaintiff has perfected title by way of adverse possession so far as Schedule A land is concerned. The allegations have been made that two years prior to the suit, the defendant no.5 allowed the defendant no.6 to occupy the two rooms on the western portion and the front verandah. However, being actuated with ill motive and in collusion with the defendant nos. 5 and 6 on 11.09.1986, they trespassed over the Schedule D land and started digging earth there from in order to lay the foundation for a house which was protested to by the plaintiff. The matter was then reported to the local Sarpanch for settlement. Since it ultimately failed, the suit has been filed.