KALYANI MAHANA Vs. BANSHIDHAR SAHU AND ANOTHER

JUDGEMENT

(1.) Defendant no.2 is the appellant against a reversing judgment.

(2.) Plaintiff-Respondent no.2 instituted the suit for declaration of title over the suit property, registered sale deed no.5 of 1990 executed by the defendant no.1 in favour of the defendant no.2 is illegal and in the alternative retransfer of the suit land in faovur of the plaintiff and partition. The case of the plaintiff was that plaintiff and defendant no.1 are sons of Bhimasen Sahu. Their father had no property except the ancestral old house. On 28.5.62 the ancestral house of the family was partitioned. Defendant no.1 was allotted a share. After partition, the plaintiff and his father lived together. Thereafter, they had purchased the suit land jointly. They had constructed a house over the same. Defendant no.1 had not contributed any amount towards purchase of the suit land. Defendant no.1 had no semblance of right, title and interest or possession over the same. After death of his father, the plaintiff became the absolute owner of the property. In January, 1990, the defendant no.2 laid a claim over the suit property on the pretext that she had purchased the suit property from defendant no.1 by means of a registered sale deed. Thereafter the plaintiff ascertained that the defendant no.1 had sold the suit house to defendant no.2 by means of a registered sale deed. The defendant no.1 had no title over the property. The sale without his consent is void. Further, the plaintiff being a co-sharer had a preferential right to purchase the suit house. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

(3.) Defendant no.2 entered contest and filed a written statement pleading inter alia that the plaintiff and defendant no.1 were in joint mess and property. The defendant no.1 and his father purchased the suit land, converted it to homestead and constructed a house. All of them were in possession of the same. There was no partition between the plaintiff, defendant no.1 and their father on 28.5.62. It was further pleaded that after death of the father of the plaintiff and defendant no.1, there was partition between them in respect of the suit land on 2.12.86 in presence of the local gentries. The suit land fell to the share of defendant no.1. Thereafter, the defendant no.1 sold the suit land to defendant no.2 on 1.90 for a consideration Rs.4, 000/- and delivered possession. Defendant no.2 is in possession of the suit land. Defendant no.1 was set exparte.