BINA SUKLA Vs. MEENA DEVI PANCH

JUDGEMENT

(1.) PLAINTIFF is in appeal against the judgment passed by learned 2nd additional District Judge Puri in Title Appeal No. 4/80 of 1995/92 reversing the judgment and decree of learned Addl. Subordinate Judge, Puri recorded in Title Suit No. 6/78 of 1990/86-1.

(2.) PLAINTIFFS case was that her father pandit Jagannath Prasad Sarma got the land and house under Municipal Holding No. 924 (Ward No. 4, Circle No. 5) located by the side of the Grand Road of Puri town by way of a gift dated 18-12-1946 from the Mahanta of emar Math, Puri for meritorious service. The father of the plaintiff thus possessed the suit land and house and in course of time raised 2nd and 3rd, stories in the said building. Then he died in 1962. He was survived by his widow Golaprani Sharma and two daughters, namely, Bina Sukla (plaintiff) and bimala Jharkhadia (defendant No. 1 ). These 3 heirs effected partition of the properties of late Jagannath Prasad Sarma and in that partition the above said house and land fell to the share of the plaintiff and widow golaprani Sarma. The northern half fell into the share of the plaintiff and southern portion fell into the share of widow-Golaprani, golaprani remained in exclusive possession of her share and realized rent from the tenants including Sagarmal Panch. Golaprani died on 1-1-1979 and her share devolved upon the plaintiff and defendant No. 1 jointly. There was an eviction proceeding against Sagarmal Panch and in order to frustrate that eviction proceeding, the daughter-in-law of Sagarmal Panch persuaded defendant No. 1, who was married and staying at Jhansi to execute a sale deed for her share in the suit house and in collaboration with defendant No. 1 got two sale deeds executed showing transfer of the share of defendant No. 1. Then on the strength of the said sale deeds, the vendees defendants 2 and 3 tried to realize monthly rent from tenants Sagarmal Panch and Syndicate Bank, puri branch. They also tried to disturb the possession of the plaintiff from the suit house and land. The plaintiff, therefore, filed the suit for declaring the said sale deeds executed by defendant No. 1 in favour of defendant Nos. 2 and 3 as invalid and for a decree of pre-emption giving her the right to purchase the undivided share of defendant no. 1. She also prayed to injunct the defendants from interfering in her possession over the suit property.

(3.) DEFENDANT No. 1 did not file written statement and was set ex parte. Defendants 2 and 3 in the joint written statement admitted that the suit house and land belonged to Jagannath Prasad Sarma and that on his death it was partitioned among the widow golaprani and the two daughters and that the northern half fell to the share of the plaintiff and southern fell to the share of golaprani. They also admitted that on the death of Golaprani, her share devolved on the plaintiff and defendant No. 1. They, however, averred that the plaintiff and defendant No. 1 effected amicable partition wherein the eastern half of the share of late golaprani described in A,d, X and Y of the map was allotted to the share of defendant no. 1 and the western half described in B, c, X, Y was allotted to the share of the plaintiff and after such partition defendant No. 1 became the exclusive owner of her share and because she was in dire need of money for her daughter's marriage, she sold her share described in the map as A, D, X, Y to them for due consideration. They also pleaded that before selling this property to them, defendant No. 1 offered to sell the property to plaintiff and her husband, but the plaintiff and her husband did not respond to the offer and in the process they lost their right of re-purchase under Pre-emption. Defendants 2 and 3 also challenged the maintainability of the suit on the plea that it is not in the proper form and there was no cause of action.