INDUMATI DIBYA Vs. SASHIMANI DIBYA AND ORS.

JUDGEMENT

(1.) Both the contesting parties in the suit have filed second appeal being aggrieved by the judgment and decree of the lower appellate Court decreeing the Plaintiff 's suit in part. While Second Appeal No. 264 of 1980 has been filed by Defendant No. 1 Second Appeal No. 270 of 1980 has been filed by the heirs of the Plaintiff Biswanath Mohapatra who were substituted in his place in the lower Appellate Court. Since the cases are Closely linked with each other they were heard together with consent of the learned Counsel for the parties and they are being disposed of by this judgment.

(2.) Biswanath Mohapatra filed Original Suit No. 166 of 1975 in the court of the Munsif Puri for partition of the property described in schedule 'Ka' to the plaint between himself and Defendant No. 1 Indumati Dibya claiming half share there in and for a declaration that the properties described in Schedules 'Kha' and 'Ga' of the plaint are the properties of himself and Defendant No. 1 and Defendants 2 to 7 have no manner of right over it. Indeed, the properties described in Schedule 'Ka' include the properties in Schedules 'Kha' and 'Gal' of the plaint. Shorn of unnecessary details the case of the Plaintiff was that the 'Ka' schedule property was jointly purchased by himself and Gangadhar Mohapatra, husband of Defendant No. 1, by two registered sale deeds dated 15 -4 -44 and 2 -4 -50 from Satyabadi Sarangi and Gopinath Mohapatra respectively. The sale deeds are marked as Exts. 1 and 2 in the suit. After purchase of the property both the Plaintiff and Gangadhar Mohapatra remained in joint possession of it and after the death of Gangadhar, about 10 years before filing of the suit, the property was jointly possessed by the Plaintiff and Defendant No. 1. In the last settlement in 1967 the property was recorded jointly in the names of the Plaintiff and Defendant No. 1. Plaintiff 's further case was that taking advantage of his absence from the village as he has been serving at Brajarajnagar for the last twenty years, Gangadhar sold the 'Kha' and 'Ga' schedule lands to Defendants 2 to 7 by the registered sale deed dated 24 -4 -50 (Ext. A). But by such sale the purchasers did not acquire any right, title, interest or possession over the lands. As Defendant No. 1 did not agree to partition of the 'Ka' schedule property on demand and threatened to dispossess the Plaintiff from the land the filed the suit for the reliefs noticed earlier. Plaintiff Biswanath Mohapatra and Gangadhar Mohapatra are related as cousins.

(3.) Defendant No. 1 alone filed written statement and contested the suit. Her case in brief, was that the 'Ka' schedule property was the salt acquired property of Gangadhar alone long prior to the purchase there had been a partition in the family and Gangadhar had separated from the Plaintiff and his brother Lingaraj. Gangadhar had paid the entire consideration money for the 'Ka' schedule lands purchased under the sale deeds, Ext. 1 and 2, was in exclusive possession of the said lands and was paying rent for it. Regarding inclusion of the name of the Plaintiff in the sale deeds the case of Defendant No. 1 was that it was done to facilitate the proposed exchange of four decimals of land purchased under the aforesaid sale deeds with three and half decimals of land in plot No. 1348 which had fallen to the share of the Plaintiff and which was lying adjacent to the land of Gangadhar. According to Defendant No. 1. since the Plaintiff insisted that his name should be included in the sale deeds Gangadhar had agreed to such inclusion nominally for the purpose of exchange. On these facts Defendant No. 1 claimed exclusive right title, interest and possession over 'Ka' schedule property as the sa If -acquired property of Gangadhar. Alternatively she took the plea that assuming that the Plaintiff had any interest in the suit property on the strength of the sale deeds (Exts. 1 and 2) he was ousted from the same by long and continuous possession of Gangadhar, after him by Defendant No 1 and therefore Defendant No. 1 had acquired right, title and interest over the entire land by adverse possession. It was contended by Defendant No. 1 that Gangadhar had been dealing with 'Ka' schedule land as his property by constructing a house in the entire suit plot No. 1352 and by selling the 'Kha' and 'Ga' schedule lands to Defendants 2 to 7 to the knowledge of the Plaintiff. According to the Defendant No. 1, Gangadhar died sometime in 1962.