KHIROD CHANDRA MOHANTY Vs. BANSHIDHAR KHATUA

JUDGEMENT

(1.) Defendant No. 1 in Title Suit No. 264/14 of 1967/72 has preferred this appeal against the decision of the Court below in title Appeal No. 36/73 confirming that of the trial court.

(2.) The plaintiffs' case, in short, is that in the family partition between Gouranga and his two brothers, the suit lands described in schedules A and B of the plaint fell to the share of Gouranga. Gouranga died on 25-9-66 leaving behind him his widow Dalimba, who was defendant No. 2 in the suit. Gouranga had alienated 29 decimal of land, described in schedule A of the plaint, in favour of plaintiffs 1 and 2 by two registered sale deeds dated 11-8-62 and 22-7-68. He also had sold the rest Ac. 4.11 decimals of land as per the registered sale deed dated 31-7-63 in favour of Latika, defendant No. 3, the wife of defendant No. 4. Defendant No. 3 thereafter alienated Ac. 8.50 decimals 6 Biswas of land, described in shedule B of the plaint, in favour of plaintiffs 3 to 10 by different registered sale deeds and these plaintiffs accordingly acquired valid title to the said properties. Defendant No. 1 (appellant herein) was not the adopted son of Gouranga and he had absolutely no right, title or interest in the suit properties. Defendant No. 1 instituted Title Suit No. 52-64 on the false averments that he was the adopted son of Gouranga and that he was not bound by the aforesaid sales. In that suit an ex parte decree was obtained by defendant No. 1 by fraud and collusion, and so the same is not binding on the plaintiffs in this suit and the decision in the said suit does not operate as res judicata for the present suit and also does not affect the right, title and interest of the plaintiffs in the suit properties in any manner.

(3.) Defendant No. 1, the only contesting defendant, asserts that he was adopted as the son of Gouranga on 5-6-60, the sale of 29 decimals of the A schedule land in favour of plaintiffs 1 and 2 was challenged in the written statement, but he expressly relinquished his claim to that effect by his petition dated 7-8-72. The aforesaid sales in favour of defendant No. 3 by Gouranga and by defendant No. 8 in favour of plaintiffs 3 to 10 are challenged as invalid and inoperative. After Gouranga's death this defendant instituted T. S. No. 52/64 which was decreed ex parte against the defendants and Gouranga and some others. In that suit it was declared that defendant No. 1 was the adopted son of Gouranga; he ((defendant No. 1) was not bound by the sale deeds executed by Gouranga; and the plaintiffs and defendant No. 3 being lis pendens transferees of the suit property they had not acquired any title over the same. It is stated that the decree in T. S. No. 52/64 was not obtained by fraud and collusion between the parties in the said suit and that decree is binding against the plaintiffs, the lis pendens transferees of defendant No. 3 and the same operates as res judicata against this present suit.