KESHAB CHANDRA MALLIK Vs. RAMA DEI AND ORS.

JUDGEMENT

(1.) In both the above noted second appeals, the judgment and decree passed by the learned Addl. District Judge, Nayagarh in Title Appeal No. 20/1 of 2003/1999 are under challenge.

(2.) The appellant of RSA 561 of 2005 was the defendant No. 2 in the trial court in Title Suit No. 13 of 1977 on the file of learned Addl. Civil Judge (Jr. Divn.), Khandapara, whereas the appellant of RSA No. 580 of 2005 as the defendant No. 1. The suit had been filed by one Rami Dei as the plaintiff. She having died during pendency of the suit, her legal representatives being substituted in her place pursued the suit till its end. The suit had been filed for declaration of right, title and interest of the plaintiff over the suit land confirmation of possession in the alternative for recovery of possession and other consequential reliefs. The suit stood decreed in part. The trial court held the plaintiffs and defendant No. 2 to have joint title and possession over the suit land and accordingly directed recovery of possession of the suit land from defendant No. 1 for such the enjoyment of possession by the plaintiffs and defendant No. 2 till they go for regular partition amongst themselves.

(3.) It is the case of the plaintiff that the suit land originally belonged to one Duryodhan Majhi who was in possession of the same. He being in need of money to acquire the house entered into an agreement for sale of the suit land with defendant No. 1 and delivered possession of the same to him on receiving of advance consideration of Rs. 925/ -. However, thereafter in spite of repeated request when defendant No. 1 did not pay the balance consideration, said Duryodhan sold the suit land to the ancestors of the plaintiffs by two registered sale deeds dated 28.1.72 and 11.4.72 for valuable consideration. The defendant No. 1 then filed a suit which was numbered as T.S. 4/72 against his proposed vendor as also the subsequent purchasers, the ancestors of the plaintiff. The relief claimed in the suit was for specific performance of contract. The said suit being contested stood dismissed. Although first appeal was filed by the defendant No. 1, he did not get the desired result. He then carried second appeal to this Court which was also dismissed. However, as per the admitted case, Duryodhan having delivered possession of the suit land to defendant No. 1 at the time of agreement, his possession of the suit land had been found by all the courts in that round of litigation. In this way, after the closure of the first round of the litigation by the order of this Court in the second appeal finally refusing the defendant No. 1 as to be entitled to the relief of specific performance of agreement, the purchasers filed the suit for recovery of possession of the suit land from defendant No. 1. During the suit when the plaintiffs stated that the defendant No. 2 was claiming to have purchased half of the suit land from one sister of that Duryodhan, the plaint was amended and defendant No. 2 was impleaded as party. It is their further case that in order to create complication and somehow to retain the possession of the suit land despite of being defeated in the legal battle on the first round in getting the land purchased pursuant to the agreement, the defendant No. 1 had set up the defendant No. 2 in creating the sale deed from Sashirekha, the sister of Duryodhan.