HAGURI ALIAS HEMA BEWA Vs. DHANESWAR BARIK

JUDGEMENT

(1.) DEFENDANTS 1 and 3 are the appellants against a reversing decision. The suit for declaration of title, confirmation, or in the alternative, recovery of possession and permanent injunction in respect of Ac.O. 57 decimals of land from the northern side of Khata No. 56, Plot No. 49 with an area of Ac. 4. 141 decimals of land was dismissed by the trial Court.In appeal, the suit was decreed by the lower appellate Court.

(2.) IT is not disputed that Laxmidhar Mohanty, the deceased husband of defendant. No. 1 and Bira Mohanty, the deceased father of defendant No. 2, being two brothers were jointly recorded as Sthitiban raiyats in respect ofAc. O. 36 decimals of land in Khata No. 55. It is the further admitted case of both the parties that in an amicable partition, the northern portion of Ac. 4.14 decimals of land was allotted to Laxmidhar and the balance was allotted to allotted to Bira and after the death ofLaxmidhar, defendant No. 1 inherited the northern portion including the present disputed land and the southern portion devolved upon defendant No. 2. It is claimed by the plaintiff that defendant No. 1 being in urgent need of money sold Ac.14 decimals of land including the disputed land to the plaintiff under a registered sale deed dated 23 -9 -1963 for a consideration ofRs. 1,000/ - out of which Rs. 800/ - had been paid prior to execution of sale deed whereas the balance amount of Rs. 200/ - was paid on the date of execution of the sale deed. It is further alleged that defendant No. 2 prevailed upon defendant No. 1 to cancel the said sale deed by a document dated 27 -9 -1963, but in spite of the said cancellation, the plaintiff continued in possession. Subsequently, the plaintiff sold Ac. 1.07 decimals of land out of his purchased land to defendant No. 2 on 26 -12 -1972 and some more lands to other purchasers, namely Anadi Barik. Bhagirathi Parida and Ratha Parida. Subsequently defendant No. 1 executed a sale deed dated 24 -2 -1975 is respect of the entire land which was already sold to the plaintiff. as defendant No. 3 threatened to dispossess the plaintiff, the suit was filed in respect of the present disputed land.

(3.) THE trial Court found that the sale deed (Ext. 4) was not genuine, had not been validly executed and was without any consideration. It was also found that the description of the suit land was indefinite and as such no effective decree could be passed. It further found that the plaintiff had failed to prove that he was in possession of the disputed lard within twelve years of the institution of the suit and the suit was barred by limitation. On the aforesaid findings, the suit having been dismissed, an appeal was filed by the plaintiff. The lower appellate Court accepting the contention of theplaintiff held that Ext. 4 had been duly executed and was supported byconsideration and since the suit was based on title, the title havingbeen established, the plaintiff was not required to prove the possession. On theaforesaid findings, the suit was decreed.