HAREKRUSHNA MAHAKUD Vs. RADHANATH MAHAKUD

JUDGEMENT

(1.) THE unsuccessful Defendant No. 1 in both the Courts below is the Appellant. This appeal is directed against the Judgment and decree dated 11.5.1989 passed by the then District Judge, Phulbani in Title Appeal No. 5 of 1987 dismissing the appeal and confirming the Judgment and decree dated 28.1.1987 passed by the then Additional Subordinate Judge, Phulbani in T.S. No. 27 of 1984.

(2.) THE suit was one for declaration of title as well as for recovery of possession of the lands more fully described in the plaint schedule. Bereft of unnecessary details, the facts necessary for appreciating the inter se disputes, are as follows:

(3.) ON the basis of the pleadings, the Trial Court framed six issues. In order to substantiate his case, the Plaintiff got examined three witnesses and exhibited five documents. Defendant No. 1 got examined five witnesses and exhibited as many as seven documents. After discussing the evidence both oral and documentary in extenso, the Trial Court came to the conclusion that the Plaintiff was in fact a minor on 1st February, 1977 when Defendant No. 2 executed the registered sale deed alienating the disputed properties in favour of Defendant No. 1 and that Defendant No. 2 being the eldest son was looking after the properties and was the 'Karta' of the joint family after the death of Dukhu and that the suit property was the joint family property of the family and all the co - sharers have a right over the same. It was however held that there was no legal necessity to alienate the suit land and as such, the sale deed executed by Defendant No. 2 alone in favour of Defendant No. 1 was invalid and was not binding on the Plaintiff. The Trial Court also held that the suit was not barred by time. On the basis of such conclusion, the Trial Court decreed the suit, set aside the sale deed as well as the deed of rectification, declared the right, title of the Plaintiff to the extent of his joint interest in the suit property and directed the Defendant No. 1 to make over possession of the entire suit land to the family of the Plaintiff.