BANSIDHAR NAYAK Vs. PRIYA RANJAN MOHANTY AND OTHERS

JUDGEMENT

(1.) This petition challenges the correctness of the order dated 26.3.2016 passed by the learned 1st Additional Civil Judge (Sr. Division), Bhubaneswar in C.S.No.94/1059 of 2013/08 allowing the application filed by opposite party no.3 under Order 1 Rule 10 C.P.C. for impleadment.

(2.) Bansidhar Nayak, predecessor in interest of the petitioners, instituted suit for declaration that the Registered Power of Attorney No.10971 dated 1.10.2007 as nullity, confirmation of possession, permanent injunction and other consequential reliefs impleading the opposite parties 1 and 2 as defendants. The case of the plaintiff is that the G.A. Department has executed a lease deed in his favour in respect of the suit schedule land on 8.4.1962. He has constructed a residential house over the same and is residing therein with his family members. He has also rented out some portion of his residential house. In the hal settlement operation, the schedule property has been recorded in his name in the R.O.R. By virtue of resolution dated 18.7.2003 of the State Government, it was declared that leasehold property of the G.A. Department would be converted to free hold property on proper application and deposit of requisite fees. Since he is an old man suffering from heart diseases and other ailments, he became unable to pursue the matter. His son was staying outside the State in connection with his service. At this juncture, the defendant no.1, friend of his son, came forward to help him for conversion of the lease hold land to free hold. The defendant no.1 intimated him that he had already contacted the officials of G.A. Department and his personal presence was required for the said purpose. Due to bad health, he was not in a position to move out. The defendant no.1 gave a proposal to him to execute and register a power of attorney in his favour to look after the matter for conversion before the G.A. Department, to which he agreed. When he was ill and not in a fit state of mind and unable to understand anything, the defendant no.1 had managed to take him to the office of Sub -Register, Bhubaneswar. The defendant no.1 had already drafted a deed through his advocate and misrepresented him. On good faith, without knowing the contents of the document, he put his signature and L.T.I. and also admitted the execution. It is further stated that the Land Officer, G.A. Department by letter dated 27.2.2008 informed him to deposit a sum of Rs.61,983/ - towards conversion fees and Rs.1,02,273/ - towards differential premium in shape of two Bank draft in favour of Land Officer, G.A. Department so as to execute a conveyance deed within 30 days. He gave the above mentioned amount to the defendant no.1 to prepare Bank draft. The defendant no.1 deposited the Bank draft and accordingly a deed of conveyance for conversion from lease hold to free hold had been executed and registered on 22.4.2008. As per the instruction of the defendant no.1, he signed on various papers. The Director of Ex Officio -Joint Secretary to Government vide memo no.12287 dated 12.8.2008 informed him that his land was converted to free hold stitiban status with effect from 22.4.2008.

(3.) Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that the suit as laid is speculative one. The plaintiff's case suffers from inherent inconsistencies and contradictions. The plaint is conspicuously silent regarding specific nature or instance of fraud. There is no averment regarding particulars of fraud. The suit has been instituted to deprive defendant no.2, bona fide purchaser to enjoy the suit property. The plaintiff had executed a registered agreement for sale in favour of defendant no.1 on 5.10.2007, acknowledged receipt of Rs.10,00,000/ - in cash from defendant no.1 towards part consideration and subsequently received an amount of Rs.15,00,000/ - in cash. He had applied for change of the lease hold status of land into free hold tenure. It is further stated that since the defendant no.1 was not in a position to arrange the total consideration amount immediately and his brother, defendant no.2 was ready and willing to purchase the property, the defendant no.1 as the constituted attorney of the plaintiff, had executed and registered the sale deed, transferring the suit land in favour of defendant no.2 by means of Registered Sale Deed No.8333 dated 3.6.2008 for a valid consideration. Possession of the property was duly delivered to the vendee.