BISWANATH PANDA Vs. SARAT CHANDRA PANDA

JUDGEMENT

(1.) Plaintiff of Title Suit No. 12 of 1977 of the Court of the then Subordinate Judge, Aska, is the Appellant in this Second Appeal. The suit was one for recovery of possession of the suit schedule lands and for recovery of mesne profit, both past and future, in respect of Ac.2,21 cents of lands more fully described in the plaint schedule.

(2.) BEREFT of unnecessary details, the short facts necessary for appreciating the inter se disputes are as follows: Biswanath Panda (Plaintiff) and Chakrapani Panda were two brothers. According to the plaint case, there was an oral partition between the two brothers in March, 1955. In the said partition, half of the joint family properties and cash of Rs.3,000 was allotted to the share of Biswanath' Panda, the Plaintiff, whereas the other half of the properties were allotted in favour of Chakrapani Panda, father of Defendants. In the said partition, Ac.4.00 dec. of lands besides a house was also allotted to the share of mother of Chakrapani and Biswanath. It is averred that the Plaintiff purchased Ac. 7 .60 cents of land under registered sale deed, Ext.1 dated 27th March, 1955 from one Ramahari Das. Ac.2.21 cents out of the lands purchased under Ext.1 is the property in dispute, which the Plaintiff asserts to be in exclusive possession. It is alleged that after the death of the mother, dissentions cropped up between the two brothers. While matter stood thus Chakrapani died in the year 1976. After his death, Defendants forcibly trespassed into the properties and occupied the same, consequently, the Plaintiff, it is alleged, was constrained to file the suit for recovery of possession & also claimed mesne profit from July, 1977 till realization.

(3.) ACCORDING to the Defendants, the partition of the joint family properties took place on 20th April, 1956 and not on March, 1955. It is further averred that in March, 1955, Chakarpani, father of the Defendant was not well and as such Biswanath Panda, the Plaintiff, was deputed to get the sale deed Ext.1 registered. Taking advantage of the said fact, he got the sale deed executed in his own name and also got another document executed in the name of Chakrapani Panda in respect of Ac.4.66 cents of land on the same date, i.e., on 27th March, 1955 vide Ext. E. Further, according to the Defendants, the consideration amount paid in respect of the lands purchased by sale deed vide Exts.1 and E, were out of the income of the joint family properties. In the partition held on 20th April, 1956, it is averred that an area of Ac.2.03 cents, from out of the lands covered under sale deed, Ext.1 and the properties covered under the sale deed, Ext. E fell to the share of Chakrapani Panda and the other properties fell to the share of Biswanath, the Plaintiff. It is averred that the Defendants were all along in possession and enjoyment of the properties, which fell to their share and the claim raised by the Plaintiff is nothing but colourable pretence to grab the properties, and as such, the suit was liable to be dismissed.