GOLAKA CHANDRA NAYAK Vs. GOBINDA NAYAK

JUDGEMENT

(1.) Plaintiff is the appellant against a reversing decision,

(2.) Title Suit No. 121 of 1974 was filed in the Court of the Munsif, Kendrapara, seeking for a declaration that the sale deed dated 28-7 1938 (Ext. 2) in favour of defendant No. 22 and sale deed dated 20-1-1939 (Ext. C) in favour of Nityananda, the predecessor-in-interest of defendants 1, 2 and 3, executed by Rajan Bewa, are invalid and inoperative and for declaration of plaintiffs title in respect of Schedule B and C properties; recovery of possession of the Schedule B and C properties if the plaintiff is found to have been dispossessed therefrom and permanent injunction restraining defendants 1, 2 and 22 from interfering with the possession of the plaintiff.A long genealogy has been appended as Schedule A to the plaint. Though initially there was some dispute regarding the correctness of the genealogy, at the time of trial as well as in the first appellate Court, the said genealogy has been accepted to be correct. So far as relevant for the purpose of the present appeal, suffice it to say that Nanda Naik had four sons, namely Pankaj, Sadei, Binod and Madan. The contesting defendants 1 to 3 as well as defendants 4 to 9 (who were set ex parte in the trial Court) represent the branch of Pankaj. Defendants 10 to 14 (who were set ex parte) represent the branch of Sadei and defendants l 5 to 21 (who also did not contest) represent the branch of Binod. So far as Madan is concerned, the genealogy relating to his branch is extracted hereunder: -(See table below) According to the plaintiff's case, the disputed properties along with other properties representing 4 annas share in the property of the original ancestor Nanda fell to the share of Madan in an amicable partition amongst the four sons of late Nanda. Karuni and Rangadhar expired leaving behind the plaintiff. Bimbadhar died leaving his only son Pandab, who died leaving behind his three sons, Gani, Guru and Dura and widow Rajan Bewa. It is not disputed that Pandab and his three sons pre-deceased Rajan Bewa prior to 1934. Fakir, the third son of Madan died leaving behind Panchu who expired issueless. Accordingly, it is alleged that interest of branches of Bimbadhar and Karuni devolved on Rangadhar and thereafter on the death of Rangadhar twenty years prior to filing of the suit, devolved on the plaintiff as the only heir. It is further alleged that Rajan Bewa had no right, title and interest in the disputed property and she was all along staying with Rangadhar, the father of the plaintiff and thereafter with the plaintiff till her death about ten years prior to the filling of the suit. The further case of the plaintiff is that defendant No. 22 taking advantage of the illiteracy and innocence of Rajan Bewa obtained Sale deed dated 27-7-1938 from her in respect of 'B' Schedule lands. Similarly, Nityananda Naik, father of defendants 1 and 2, prevailed upon Rajan Bewa and obtained sale deed dated 20-1-1939 in respect of 'C' schedule property which, in fact, corresponds to Lot. No. 1 of 'B' Schedule properties. It is alleged that the sale deeds were inoperative as Rajan Bewa had no interest in the property. Moreover, even assuming that Rajan Bewa had any right, she being a limited owner, had no right to alienate the property and as there was no legal necessity for the alienation of the disputed lands in favour of defendant No. 22 and late Nityananda, the transactions were not binding. It is further alleged that after the death of Rajan Bewa, defendants 1 and 2 threatened to dispossess the plaintiff from the suit land and the plaintiff for the first time learnt about the so-called sale deeds in the year 1974 and was forced to file the suit.During the pendency of the suit, defendant No. 22 having expired, his loyal representatives were impleaded as defendants 22-ka to 22-gha. Subsequently vide order dated 30-4-1979, the plaint was amended and Lot No. 2 of 'B' Schedule was deleted. As such the suit remained confined to 'B' Schedule, Lot No. I which corresponds to 'C' Schedule. U

(3.) Defendants 1, 2 and 3 who are admittedly the successor-in-interest of Nityananda have alone contested the suit by filing a joint written statement. Though they had challenged the correctness of the genealogy initially in the written statement, the correctness of genealogy was accepted at the time of trial. It is asserted in the written statement that Rajan Bewa had 2 annas share having succeeded to the same after the death of her husband and three sons. Being hard-pressed for money and as she was continuously ailing, she had transferred 'C' Schedule land in favour of Nityananda and the alienations were valid and binding and possession had been delivered. The other defendants did not contest the suit. The legal representatives of original defendant No. 22 did not contest the suit presumably because they had no stake in the matter, inasmuch as a sale deed had been executed by original defendant No. 22 in favour of defendants 1 and 2 on 30-8-1974, a few days prior to the presentation of the plaint on 7-9-1974.