RASANANDA SAHOO Vs. PRAFULLA KUMAR SAHU AND ORS.

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 18.11.1989 and 30.11.1989 respectively passed by the learned Subordinate Judge, Angul in T.S. No. 40 of 1984, the unsuccessful defendant No. 1 has filed this appeal.

(2.) The plaint story in brief reveals that plaintiffs and defendant No. 1 are the three sons of one Jayakrushna Sahoo. Other defendants are tenants in respect of the suit house. It is the case of the plaintiffs that contesting parties (plaintiffs and defendant No. 1) to the suit belonged to village Matagajpur in the district of Cuttack. They shifted to Angul for the purpose of earning their livelihood. They initially started Hotel business in the name and style of 'Hindustan Hotel' at Angul bus stand in the year 1951. By then, the plaintiffs were minors and defendant No. 1 acted as the Manager of the Hotel and the plaintiffs were helping him in its management. They were living in a rented house at Amalapada in Angul town. Their father, Jayakrushna Sahoo by then was pretty old, devoid of clear vision, was hard of hearing and his hands were trembling due to old age. He was also bedridden and physically incapable. The family had a handsome income from the Hotel business and out of such income they purchased Ac. 0.60 decimal of land at Amalapada (for short 'the suit land') from one Sashi Bhusan Garnaik vide RSD dated 29.05.1953 for a consideration of Rs. 1,500/ -. The defendant No. 1 taking undue advantage of incapacitation of the father, the age of the plaintiffs as well as his status in the family purchased the suit land in his name without the knowledge of the plaintiffs. On purchase, they constructed a thatched house out of the income from the said Hotel business and were residing therein. Subsequently, they constructed a pucca house over the suit land by incurring loan and utilizing the compensation, the family had received for acquisition of their ancestral properties at Matagajpur by the Railways. The said house was rented out to Telephone Department on monthly rent of Rs. 90/ - from 1957 to 1970. The rent was being collected by defendant No. 1 and the loan was repaid out of the same. Their father, namely, Jayakrushna Sahoo had also purchased another piece of homestead land at Angul town and subsequently sold the same to one Maheswar Sahoo for a consideration of Rs. 8,000/ - and the sale proceeds were also utilized for repayment of the loan obtained for construction of the suit house. After, the marriage of plaintiff No. 2 in the year 1970 dissension arose in the family. Defendant No. 1 shifted to a portion of the suit building, which was vacated by the Telephone Department. The rest portion of the suit house was rented out to different persons. The plaintiffs resided in the thatched house over the suit land. The defendant No. 1 collected a good amount of money from defendants 2 to 4 (the tenants) towards rent and appropriated the same. Since the year 1970, plaintiffs were separated in mess from defendant No. 1. Their parents stayed with them. Jayakrushna died in the year 1975 and their mother died in the year 1977. In the year 1972, defendant No. 1 negotiated with one Sudhakar Pradhan to sell Ac. 0.10 decimal of land from the suit land, but the plaintiffs protested to such attempt. As the defendant No. 1 had taken some advance from said Sudhakar Pradhan, the latter filed TS No. 3 of 1975 against defendant No. 1. In the year 1976, the defendant No. 1 again made an attempt to sell a portion of the suit land to one Ramanath Sahoo, but due to intervention of the plaintiffs the same could not be materialized. The defendant No. 1 in order to deprive the plaintiffs from their legitimate share created disturbance with an intention to evict the plaintiffs by closing the common path and by constructing some houses in front of the thatched house in which the plaintiffs were staying. Thus, the plaintiffs finding no other alternative filed suit claiming 1/3rd share each in the suit land as well as 1/3rd share from the rent collected and appropriated by defendant No. 1.

(3.) The defendant No. 1 only contested the suit by filing written statement and other defendants were set ex -parte. Challenging the maintainability and cause of action of the suit, the defendant No. 1 filed his written statement. He claimed that the suit was barred by limitation and was bad for non -joinder of necessary parties. In his written statement, defendant No. 1 pleaded that their common ancestor Arta had only three acres of agricultural land at Matagajpur and the same was quite inadequate to maintain the family. Arta had four sons, namely, Iswara, Biswanath, Kusa and Basu. The family had business of selling rice purchased from outside and 'Ukhuda'. When the size of the family inflated, it became impossible to manage the family with the meager income from such sources. Thus, the elder son of Arta, namely, Iswara shifted to Purunagarh under Angul Sub -Division and then he shifted to Angul town about 90 years back and acquired a piece of homestead land there. He was running a sweets stall at Angul bazaar. By then, all the four sons of Arta were living jointly and also running the business jointly. Subsequently, ancestral lands at Matagajpur were divided amongst them, but the property at Angul town was kept joint. The business at Angul was being managed by all the four brothers on rotation and after the death of all those four brothers their sons also joined hands in running the said business. Their family members were then residing at Matagajpur village. The defendant No. 1 and his father had also joined in running the said business and were getting Rs. 400/ - to Rs. 600/ - per annum towards their share. However, the income from the agricultural land as well as from the business was not sufficient for maintenance of the family of Jayakrushna. The defendant No. 1 at the age of 7 came to Angul in the year 1942 to prosecute his studies. But he could not prosecute his studies as his father could not afford to it. Thus, he left his study and started business on pulses and oil seeds on commission basis. He was collecting oil seeds from the weekly market and giving it to the dealers and was getting commission out of it. He continued the business up to 1950. From such business, defendant No. 1 could able to make profit of Rs. 2,000/ - to Rs. 3,000/ -. With such fund, the defendant No. 1 started a temporary sweets stall at Village Rantalei. There was good business at Ranatalei for which his financial condition improved. After closure of the business at Ranatalei, he searched for an accommodation to start a permanent sweets stall and Hotel at Angul bus stand. Thus, he took the house of one Ratnakar Nayak on rent and started 'Hindustan Hotel' in the year 1951. Out of the income from the Hindustan Hotel, he purchased the suit land in the year 1953 without any assistance of his father or family members. The Hindustan Hotel was the exclusive business of defendant No. 1. He was alone managing and maintaining the Hotel without any aid or assistance either of his father or the plaintiffs. After purchase of the suit land, he repaired the thatched house standing over it and brought his wife from the village. The plaintiffs then came to Angul and stayed with him to prosecute their studies. Subsequently, the defendant No. 1 incurred some loan from the House Building Society and started construction of a pucca building in the year 1956. He rented out the said building to Telephone Department. The defendant No. 1 in his written statement denied to have received any share from the compensation received by the family for acquisition of land by the Railways. He also denied to have utilized any amount of compensation for construction of the suit house. As the plaintiffs became wayward, to bring them to discipline, the defendant No. 1 helped them by opening another Hotel in the name and style of 'Jayabharat Hotel' in the year 1963 on the leasehold land of defendant No. 1. Thereafter, the defendant No. 1 asked the plaintiffs to purchase their own house and to vacate the suit house, but the plaintiffs did not pay any heed to the same. Though the plaintiffs had prospered a lot from their business and were well -established by 1970, they did not vacate the suit house. They were instigated and ill -advised by some of their friends and created problem over the suit land. Hindustan Hotel was closed in the year 1968 and the defendant No. 1 had no other business. He was managing his family with much difficulty. According to him, the suit land and the house standing thereon are his self -acquired properties and plaintiffs have no manner of right, title or interest thereon. Thus, he prayed for dismissal of the suit.