RAGHUNATH KHADENGA (SINCE DEAD) REPRESENTED BY HIS LEGAL HEIRS Vs. KRUSHNA CHANDRA DASH (SINCE DEAD) REPRESENTED BY HIS LEGAL HEIRS

JUDGEMENT

(1.) THIS is an appeal by the unsuccessful plaintiff against the judgment and decree passed by the learned Subordinate Judge, Athagarh in T.S. No.4 of 1979.

(2.) THE appellant as the plaintiff filed the aforesaid suit for declaration of his title over the suit land, recovery of possession of the same and for mesne profit. The plaintiffs case, in essence, was that he is a member of the Banki Traders Co -operative Society Ltd. (hereinafter to be referred to as "the Society", in short) and he incurred loan of Rs.1500/ - from the Society on 6.2.1949 by mortgaging the suit land as security. Since the loan amount was not repaid, the Assistant Registrar, Co -operative Societies, Cuttack passed award for realization of the loan dues with interest and that award was put to execution in the Court of Munsif, Athagarh in Execution Case No.7 of 1953. In that proceeding the suit land of the plaintiff was put to auction sale and was purchased by one Gobinda Panda. The plaintiff as Judgment Debtor filed a petition under Section 47 of the Code of Civil Procedure vide Misc. Case No. 27 of 1953 challenging the maintainability of the execution proceeding. The executing Court after hearing the parties held that the award under execution was passed without jurisdiction and that the sale of the suit land in the execution proceeding was a nullity. After this order of the executing Court, the Banki Traders Co -operative Society Ltd. (proforma defendant No.17) sought assistance of the Assistant Registrar, Co -operative Societies under Section 48 of the Bihar and Orissa Co -operative Societies Act, 1935 (which was subsequently re -enacted as Orissa Co -operative Society Act) for resolving the dispute. The Assistant Registrar, Co -operative Societies, (in short, 'ARCS) registered that dispute as Dispute Case No.57M of 1955 -56 and referred the dispute to Arbitrator, Banchhanidhi Kar, who was one of the Directors of the Banki traders Co -operative Society; despite the protest of the plaintiff. According to the plaintiff, the Arbitrator, who had no jurisdiction passed the award against him and one Achuta Sukla, without giving any opportunity of hearing to them. Thereafter, defendant No.17 instead of remitting the said award to the Assistant Registrar, Co -operative Societies, Cuttack filed execution case No.45 of 1957 -58 and in that proceeding suppressing all the processes put the suit land to auction sale on 24.7.1960 and in absence of any bidder, defendant No.17 itself purchased that suit land for Rs.3280/ -. Later on defendant No.17 executed a sale deed in favour of defendant No.1 for the suit land. According to the plaintiff, once the award was declared a nullity by the executing Court, the subsequent proceeding and the award passed therein was illegal and invalid. He further pleaded that although the dispute case and the auction sale etc. took place, yet he was all along in possession of the suit land and neither delivery of possession of the suit land was given to defendant No.17 nor defendant No.17 acquired any title over the suit land and accordingly, the sale deed in favour of defendant No.1 also did not convey any title to defendant No.1. Plaintiff alleged that he was in continuous possession of the suit land, but defendant No.1 and his men forcibly entered into a portion of the suit land in 1969 and in other part of the suit land in 1971 to disturb his possession thereon for which he and his vendees filed several criminal cases and 145 Cr.P.C. proceedings. Since those proceedings did not yield and positive result, he filed the suit seeking the above mentioned reliefs.

(3.) FROM the pleadings of the parties, learned trial Court framed the following 12 issues.