LAWS(ORI)-1988-1-2

KHAGESWAR NAIK Vs. DOMUNI BEWA

Decided On January 18, 1988
KHAGESWAR NAIK Appellant
V/S
DOMUNI BEWA Respondents

JUDGEMENT

(1.) The appellant who was the sole defendant in the court below has assailed the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna declaring title of respondent 1 (plaintiff 1) in the suit in respect of immovable property described in schs. A and B of the plaint, confirmation of her possession over Sch. B land, directing recovery of possession of Sch. A land and granting mesne profits @ Rs. 326/per year beginning from the year 1972.

(2.) The respondents jointly instituted the suit. Their case, in brief, is that Keshab had three sons namely Trilochan, Khageswar and Nilamani. Khageswar is the defendant-appellant. Respondent 2 is the natural born son of Trilochan and respondent 1 was the legally married wife of Nilamani. The three brothers named above effected partition of joint family property inherited from their father Keshab. In the said partition 19.06 acres of cultivable land described in the Sch. A and 0.23 acres of homestead land consisting of a house described in Sch. B of the plaint excluding some other lands which had been transferred fell to the share of Nilamani. As he had no children of his own, Nilamani adopted respondent 2 as his son, but died very early in the year 1960. After his death, the suit property was inherited by respondents and they were in peaceful possession thereof. In October, 1972 however the appellant threatened them with dispossession and so respondent 2 initiated a proceeding under S.145 of the Cri. P.C. in which the appellant took the plea that he had purchased the suit land and was in possession thereof. The Executive Magistrate by order dt. 24-9-1973 declared appellant's possession and directed delivery of possession to him. That is how the respondents instituted the suit claiming reliefs for title, confirmation of possession, recovery of possession and mesne profits.

(3.) The appellant in his written statement stated that respondent 1 was not the legally married wife of Nilamani, but was his concubine. He did not also adopt respondent 2 as his son who was the only son of Trilochan. Nilamani died in the year 1959-60 leaving behind the suit property and his widow mother. After his death, respondent 1 married one Daya Sunari of Lakhapadar and lived with him as his second wife for about two years and then came away to live with her parents. Thereafter, she married one Prabhakar Payasingh and since then has been living with him as his legally married wife in village Kandel. It is further averred that there was in fact, a partition amongst three brothers, but as Nilamani was of tender age, he re-united with the appellant and continued to live jointly with him till his death, whereafter, his widow mother continued to live with him jointly till she died in the year 1969. While alive, for the purpose of his treatment, Nilamani had sold lands in favour of the appellant by two sale-deeds dt. 11-2-1959 and 19-2-1959 to meet the expenses of his treatment. Thus he was in exclusive and continuous possession of the suit property since 1959-60 and has acquired title in respect thereof. The Executive Magistrate was correct in declaring his possession in the proceeding under S.145 of the Cri. P.C. Therefore, the respondents are neither entitled to declaration of title, possession nor mesne profits.