SUSILA SA Vs. DURJU

JUDGEMENT

(1.) PLAINTIFFS are appellants against a reversing decision. Plaintiffs filed the suit for declaration of title of the plaintiffs along with defendants 8 to 11 in respect of Schedules A and B properties described in the plaint. Further, they claimed for recovery of possession of Schedule A properties. The dispute in this Second Appeal relates only to Schedule A properties. Defendants 1 to 4 are sons and defendants 5 to 7 are daughters of Makunda Sa since deceased. Makund was the alienee of the entire A schedule properties from Ujal and Giridhari who are sons of Parikshit. The properties are admittedly ancestral properties. Plaintiffs 1 and 4 are the daughters of Ujal and plaintiffs 2 and 3 are the sons of Giridhari Sa, Original defendant 8 and defendant 9 are the daughters and defendant 10 is the widow of Ujal. Defendant 11 is Giridhari himself. There is no dispute about the genealogy.

(2.) PLAINTIFFS' case is that Schedule A lands appertaining to holding 32 of village jiratmal under Balangir P. S. were the ancestral properties of Ujal and Giridhari and they were in possession of the same. On 30-6-64, defendants 1 to 3 trespassed into those lands and created disturbance. A proceeding under section 145, Cr. P. C. was started by the plaintiffs which ultimately was decided in favour of defendants 1 to 3. During the course of that proceeding, the lands were sold by Ujal and Giridhari to late Makunda Sa on 25-7-45 (?) by a registered sale deed for a consideration of Rs. 500/ -. It is alleged that both of them were illiterate and they were induced by Makunda to execute a deed of mortgage, but by fraud, misrepresentation and undue influence, Makunda got a sale deed executed in his favour. The sale deed is alleged to be without consideration and not for legal necessity. Makunda also did not get possession.

(3.) DEFENDANT 1 in his written statement contended that Ujal and Giridhari had gone away to Patnagarh to reside there and they had sold away their homestead land in Schedule B in 1943. They also sold Schedule A lands to makunda Sa for legal necessity and received the consideration in full. After such purchase. Makunda and his family members continued in possession of schedule A lands. Makunda also got his name mutated in a duly instituted proceeding. After death of Makunda, defendants 1 to 4 have also divided those lands among themselves and have made improvements on the same. The plea of undue influence, coercion or misrepresentation has been denied. The minor defendants 2 and 3 filed written statement admitting the stand taken by defendant 1.