KALIPRASAD DAS Vs. GADADHAR SAHU

JUDGEMENT

(1.) This is an appeal by defendants 2 and 3 in a pending suit against an order of temporary injunction.

(2.) The respondent has instituted Title Suit No. 53 of 1976 in the court of the learned Subordinate Judge at Aska for declaration of title, confirmation of possession or in the alternative recovery of possession and for a decree for permanent injunction against defendants 2and3. The disputed property is a two-storied house located in village Mundamarai within the Aska Taluk. According to plaintiff, one Rama Chandra Misra was its original owner. In 1955, defendant No. 1 and Ignesu Patra jointly purchased the property by a registered sale deed dated 2-12-1955. On 9-4-1962 Ignesu sold his share in the property in favour of the first defendant and thus the first defendant became the sole owner. Plaintiff purchased the property under a registered sale deed dated 18-5-1972 for a consideration of Rs. 8,000/-. The second defendant had no right, title, interest or even possession over the property. The third defendant was a monthly tenant under the first defendant and on 31st of March, 1972, he surrendered possession to defendant No. 1. The first and the third defendants have disputes on account of a joint business which they were previously carrying in the disputed house and coming to know that the first defendant was about to dispose of the property, the third defendant prevailed upon the second defendant who happens to be a divided brother of the first defendant to execute a sale deed in his favour. The second defendant thus executed a sale deed in favour of the third defendant on 12-5-1972 notwithstanding the fact that the second defendant had no right, title or interest in the property. Plaintiff has been put into possession by his vendor. The third defendant maliciously instituted a proceeding under Section 145 of the Cr.P.C. by his application dated 11-7-1972. The learned Magistrate passed the final order in the following terms:

(3.) Defendants 2 and 3 filed a joint written statement claiming anterior title in second defendant and present title in the third defendant on the basis of the sale deed. The third defendant filed an affidavit in opposition to the prayer for temporary injunction but therein admitted that plaintiff was still in possession of the property.