SK SIRAJUDDIN Vs. HARIHAR PANDA

JUDGEMENT

(1.) Defendants 1, 2 and 3 are the appellants. Plaintiffs-Respondents 1 to 4 and proforma defendants 5 to 7 (Respondents 6 to 8) are the successors-in-interest of late Gajendra Narayan Panda, Plaintiffs 1, 2 and 3 being the sons, plaintiff no. 4 being the widow and defendants 5 to 7 being the daughters. The suit was filed for declaration of right, title and interest in respect of disputed 'Ka' schedule property, recovery of possession and for mesne profit and for permanent injunction. 'Ka' schedule property consists of two plots, plot nos. 33 and 34 corresponding to major settlement Khasada no. 491 with an area of AO.79 decimals.

(2.) According to the plaintiffs' case, the said disputed land had been purchased by their predecessor-in-interest, Gajendra Narayan Panda, from Bidyadhar Satpathy and Gadadhar Satpathy in July, 1934 and, thereafter, the plaintiffs are in possession. It is further stated that proforma defendants 5 to 7 had relinquished their interest in favour of the plaintiffs. It is further averred that in November 1981, the defendants trespassed and constructed a kutcha thatched hut on the disputed land, thereby forcing the plaintiffs to file the suit.

(3.) Defendants 1 to 3 contested the suit by filing joint written statements. While not denying that Rajendra Narayan Panda was the owner in respect of plot nos. 34 and 35, they claim right over the said plots. According to them out of the adjacent plot no. 36 with an area of Ac. 3.73 decimals, one Shyam Sundar Satpathy had purchased Ac. 1.00 of land on 25-6-1937 from the legal heirs of Rasik Ray Thakur marfat Adarmani, who was the original owner. The aforesaid Shyam Sundar Satpathy, subsequently transferred the aforesaid Ac. 1.00 land from plot no. 36 to one Panchanan Chatterjee by a registered sale deed dated 17-5-1951. Subsequently, Manchanan Chatterjee executed an agreement for sale of the said land to proforma defendant no. 4 on 14-5-1958 on receiving Rs. 500/- with the understanding that the sale deed will be executed subsequently on payment of balance consideration of Rs. 300/- and possession was delivered to defendant no. 4. Subsequently, on mutual consent between Gajendra and proforma defendant no. 4, there was oral exchange and defendant no. 4 possessed the disputed land, i.e. to say, plot nos. 33 and 34 and Gajendra possessed Ac. 1.00 from plot no. 36. Such exchange took place in the month of June 1953. Defendant no. 4, subsequently transferred plot no. 36 to defendants 1 and 2 by two separate sale deeds on 12-3-1981 in respect of AO.50 decimals each but actually in view of the earlier exchange defendants 1 and 2 took possession of plot nos. 33 and 34. It is, thus, apparent that defendants 1 and 2 are the owners in possession of plot nos. 33 and 34 and they have subsequently sold a portion of these two plots to defendant no. 3. In the alternative, these defendants claim that if it is found that plot nos. 33 and 34 belong to the plaintiffs, the title of defendants 1 to 3 be declared in respect of plot no. 36 and possession thereof be delivered to them. Proforma defendant no. 4 filed a written statement supporting the case of the plaintiffs.The plaintiffs filed written statement to the counter claim made by defendants 1 to 3 wherein they denied about the allegations relating to oral exchange and disputed about the very existence of Panchanan Chatterjee and denied about the agreement supposed to have been executed by Panchanan Chatterjee in favour of proforma defendant no. 4. They claim that though their predecessor-in-interest had purchased Ac.2.73 decimals from out of plot no. 36, as a matter of fact their predecessor-in-interest remained in possession of entire plot no. 36 including the portion claimed by defendants 1 to 3 and it was further claimed that they had perfected their right by adverse possession.