GITANJALI MISHRA Vs. GANGADHAR UPADHYAY

JUDGEMENT

(1.) The plaintiffs are appellants before this Court. They challenge the judgment and the decree of the Subordinate Judge, Puri dismissing their suit for confirmation of possession or in the alternative for delivery of vacant possession and for other reliefs. The parties will be addressed as plaintiffs and defendants in this appeal as in the original suit for the sake of convenience.Plaintiff No. 1 is the wife of defendant No. 7 and plaintiffs 2 and 3 are their children.

(2.) Plaintiffs' case is, the suit land measures Ac. 1.00, appertaining to Khata No. 275/29, Plot No. 696, situated in Ward No. 3 Holding No. 10 in Puri municipality. This originally belonged to the father of defendant No. 7 who had purchased and possessed the same in his own right, title and interest and after his death, defendant No. 7 possessed the same. Defendant No. 7 on his own entered into a partnership business with one Purna Chandra Mohapatra for manufacture of Homoeopathic drugs and to sustain the business, the partnership incurred loans from different sources. In order to protect the property from being attached at the instance of the creditors, Defendant No. 7 entered into a sham transaction with Rama Chandra Upadhyay, father of defendant No. 1 in respect of the suit properties and accordingly, a registered sale deed was executed on 15-1175 for a consideration of Rs. 35,000/- though in fact no consideration passed nor possession of the property delivered under the deed. After the death of his father, defendant No. 1 transferred a portion of the suit land in favour of defendants 3 to 6 and after knowing this, when the plaintiff's requested defendant No. 7, the latter did not take any step to save the property and deliberately avoided do so. When this conduct of defendant No. 7 went against the interest of the plaintiffs, they instituted the above suit for the reliefs already mentioned above.

(3.) Defendant No. 1 and defendant Nos. 3 to 6 filed separate written statements. While denying the material facts pleaded in the plaint, they took pleas of low valuation of the suit, absence of cause of action, the suit being barred by limitation etc. So far as transaction in question is concerned, it was pleaded that there was passing of consideration. Hence consequently title passed in favour of the father of defendant No. 1 Delivery of possession also was given. It was further pleaded that after the transaction the defendant No. l's father possessed the same and this was evidenced by mutation of the land in question in his favour as well as payment of land revenue, taxes etc. by the defendants.