BRAHMA NAIK Vs. RAMKUMAR AGARWALLA

JUDGEMENT

(1.) ONE Narasingha Pasayat had five sons -- Khedu, Dhananjoy, Sridhar, Balka and pandaki. Khema is the son of Khedu. Hema and Ketaki are the daughters of khedu. Sridhar's widow is Nurabati and son Mahendra. The case of the first party is that the disputed lands which constitute a part of holding No. 13 in village haladi-pali belong to Narsingh. Dhananjoy, Balka and Pandaki died in a joint family without leaving any issue. Khedu and Khema died leaving Mahendra as the sole surviving coparcener. Mahendra sold away some portions of holding No. 13 for a consideration of Rs. 7000 and executed a registered sale deed on 27-1-1965 in favour of Ramkumar Agarwalla, member, first party, who was in possession till the date of the preliminary order.

(2.) THE case of the second party members is that Khedu and his brothers were all divided and were in separate cultivating possession of their respective shares. By a registered deed of gift dated 22-5-1947, Khema and Dhananjoy transferred 24. 31 acres of land from holding No. 13 in favour of Hema and Ketaki. Mahendra and nurabati filed a tenancy case against Hema and Ketaki. Hema and Ketaki were declared to be in possession of 1/3rd of property belonging to Khema. After their success, they gave the disputed lands to Brahma Naik (2nd party No. 1) for cultivation on Kar basis. On 13-4-1955, they executed a usufructuary mortgage deed in respect of 2. 24 acres in favour of Brahma Naik for a loan of Rs. 500. On 33-1956, the residual disputed lands were similarly mortgaged for a loan of Rs. 1000. On 9-2-1965. Hema and Ketaki executed a registered deed of sale in favour of Brahma Naik. The second party members claim possession initially as tenants on Kar basis after 1947 and after 1955 as usufructuary mortgagees.

(3.) BOTH parties filed a number of documents and affidavits in support of their cases. On 29th of June, 1966, the learned Magistrate referred the case to the munsif, Bargarh under Section 146 (1) Cr. P. C. A brief statement of facts of the case was drawn up giving the cases of the respective parties referring to the various documents and affidavits. The substantive part of the discussion on the basis of which the reference was made may be extracted.