NARAHARI SAHU (DEAD) & OTHERS Vs. MAHESWAR PRADHAN

JUDGEMENT

(1.) Defendants are the appellants against a confirming judgment.

(2.) Plaintiff-Respondent instituted the suit for declaration of right, title and interest over the suit land, eviction of defendants and recovery of possession. Case of the plaintiff is that the suit land originally belonged to the wife of Dhaneswar Chouby. She died in the year 1963 leaving behind her son Harishankar Chouby and three daughters. Harishankar and his sons alienated the suit land to the plaintiff by means of a registered sale deed dated 9.8.1966 and delivered possession. The plaintiff is in possession of the same. Since the defendants created disturbance, he filed Criminal Misc. Case No.115 of 1966 under Sec. 145 Cr.P.C. The Magistrate declared the possession of the plaintiff. While matter stood thus, the defendants filed Title Suit No.6 of 1970 in the court of the Subordinate Judge, Sambalpur for specific performance of contract. The plaintiff-Maheswar Pradhan was set ex parte. Learned trial court decreed the suit holding, inter alia, that Harishankar was not competent to sell the entire properties. He had only 1/4th share in the Streedhan property of his mother. It directed the defendants including the plaintiff to execute a registered sale deed in respect of 1/4th share of Harishankar on payment of balance consideration amount and in the event the defendants fail to execute the registered sale deed within a period of two months, the defendants shall get the sale deed executed through court. The decree was not executed. No sale deed was obtained by the defendants on payment of balance consideration amount. The plaintiff is in possession of the suit land since 9.8.1966. On 6.5.1972, the defendants claimed to have obtained a sale deed from Harishankar. In the year 1973, the defendants initiated a proceeding under Sec.145 Cr.P.C. The Magistrate declared the possession of the defendants over the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

(3.) The defendants entered contest and filed a written statement denying the assertions made in the plaint. According to the defendants, Harishankar and his sons entered into an agreement for sale on 21.1964 in respect of Ac.30.91 decimals of land including the suit land and delivered possession. They are in possession of the same. The sale deed in favour of the plaintiff is illegal. The decree passed in Title Suit No.6 of 1970 is binding on the plaintiff. The plaintiff is not in possession over the suit land.