GOPIBALLAV JOSHI Vs. MURALIDHAR JOSHI AND OTHERS

JUDGEMENT

(1.) Defendant no.1 is the appellant in an affirming judgment.

(2.) Respondent no.1 as plaintiff instituted T.S. No.19/101 of 1989 in the court of the learned Munsif, Sundargarh for declaration of right, title and interest over 'B' schedule land, declaration that the gift deed and rectification deed executed by defendant no.2 in favour of defendant no.1 is null and void and recovery of possession. The case of the plaintiff is that one Mahidar Joshi was the owner of a land appertaining to hal khata no.321, hal plot no.362, area Ac.0.060 dec. of Sundargarh town. After his death, his widow, Sindhu Kumari Joshi, defendant no.2, became the absolute owner of the land. She was the only legal heir. To press her legal necessity, she alienated the land to the plaintiff by means of registered sale deed dated 10.4.1989 for a consideration of Rs.30,000/- and delivered possession. Thus the plaintiff became the rightful owner of the suit plot. The defendant no.1, who is a relation of defendant no.2, forcibly removed the fence and encroached upon an area of Ac.0.020 dec. of land. The plaintiff came to know that the defendant no.1 had forcibly obtained one gift deed bearing no.932 dated 2.6.1989 from defendant no.2. Defendant no.1 threatened the defendant no.2 for executing a rectification deed by stating that she had only alienated area Ac.0.040 dec. of land to the plaintiff and not Ac.0.060 dec. under pressure. The defendant no.1 had also executed the rectification deed on 31.5.1989. With the factual scenario, the suit has been filed.

(3.) Pursuant to issuance of summons, the defendant no.1 entered appearance and filed written statement denying the assertions made in the plaint. According to him, Mahidar Joshi became ill after his retirement. He volunteered to take care of his illness. Mahidar was issueless. He gifted the suit land to him in the year 1976 and delivered possession. He is in possession of the land and constructed two rooms over the same. He denied execution of sale deed in favour of the plaintiff by defendant no.2. His further case is that he is in possession of the suit land prior to gift deed. Defendant no.2 entered appearance and filed written statement supporting the stand of the plaintiff. She admitted that she sold an area of Ac.0.060 dec. of land to the plaintiff for a valid consideration and thereafter delivered possession. The defendant no.1 threatened her to execute a gift deed in his favour for an area of Ac.0.020 dec. out of 'A' schedule land. Defendant no.1 had also forced her to execute a rectification deed. Defendant no.3 also filed written statement. According to him, Mahidar Joshi was the absolute owner of the suit property. He is the sister's son of Mahidar Joshi. He was staying in the house of Mahidar to lookafter him. His uncle had executed a willnama in his favour in 7.8.1982. Defendant no.2 had no legal necessity to alienate the land in favour of the plaintiff. No consideration was paid by the plaintiff. There was no delivery of possession. When the defendant no.2 realised her mistake, she executed a rectification deed and gift deed in favour of defendant no.1 on 31.5.1989. Defendant no.1 had performed the obsequies of Mahidar. Defendant no.2 executed a registered gift deed in favour of defendant no.1 for the service rendered by him to Mahidar.