BENIRANI RAY Vs. ASHOK KUMAR GHOSH

JUDGEMENT

(1.) Durga Charan Ray, the Predecessor in interest of the present appellants, as plaintiff filed T.S. No. 25/1976 in the Court, of the then Munsif, 2nd Court, Cuttack, inter alia, praying for declaration that the sale deed dated 12-2-1976 executed by Madhusudan Ray (Defendant No. 4) in favour of original defendant Nos. 1 to 3, is illegal and invalid and to confirm the possession of the plaintiff over the suit lands and also to permanently restrain the original defendants 1 to 3 from interfering with the possession of the plaintiffs over the suit lands or in the alternative if the sale deed dated 12-2-1976 is held to be genuine document for granting an opportunity to plaintiffs to purchase the suit lands covered under the said sale deed. The trial Court decreed the suit on contest. Being aggrieved the defendants 1 to 3 filed an appeal in the Court of Addl. District and Sessions Judge, Cuttack which was registered as T.A. No. 63/77, the appellate Court allowed the appeal in part. The sale deed dated 12-2-1976 executed by defendant No. 4 in favour of defendant Nos. 1 to 3 was held to be legal and valid with regard to the property described in Schedules 'B' and 'C only, further the decree for permanent injunction passed with respect to the suit plot No. 2881 was set aside. The said judgment and decree is assailed by the legal heirs of the original plaintiff in this Second Appeal.

(2.) The inter se facts flowing from the pleadings have been dealt with in extenso in the judgment passed by the Trial Court as well as the Appellate Court. This Court, therefore, refrains from reiterating all the facts, but then confines to only those facts which are necessary for better understanding of the inter se disputes. Mahendranath Ray was the common ancestor. He had seven sons. Unfortunately five of them had died before they got married. Thus, the properties were inheritted by the two surviving sons being the original plaintiff, Durga Charan Ray, as well as original defendant No. 4, Madhusudan Ray. It appears that in the mean while Madhusudan Ray who was impleaded as proforma respondent has also expired and as he has not left behind any legal heirs his name has been deleted. It is averred that the disputed 'B' Schedule properties were purchased by the original plaintiff, defendant No. 4 and their brother Laxmikanta Ray. After the death of Laxmikanta in the year 1971 the suit properties were possessed jointly by the original plaintiff and defendant No. 4. The properties described in Schedule 'C of the plaint were recorded jointly in the name of the original plaintiff and defendant No. 4 with their other brothers. However, after the death of all other brothers, the suit properties were also inherited by the original plaintiff and defendant No. 4. The properties described in Schedule 'D' of the plaint are recorded in the name of Sri Sri Subarneswar Mahadev, the family deity of which the original plaintiff and defendant No. 4's mother were the Marfatdars. It is further averred that there was no partition by metes and bounds either between the son of Mahendranath or between the original plaintiff and defendant No. 4. According to the plaint case, defendant No. 4 who was unmarried lost his eye sight and taking advantage of such infirmity defendant Nos. 1 to 3 got a sale deed executed through him in respect of Ac.0.09.5 kadis of lands more fully described in Schedules A, B and D of the plaint. It is alleged that neither the contents of the sale deed was explained to defendant No. 4 nor any consideration amount was paid. On the basis of such allegation a prayer was made to set aside the said registered sale deed dated 12-2-1976. In the alternative it was averred, that as the properties are homestead and bari lands having residential house of the joint family, the plaintiffs may be given an opportunity to repurchase the land.

(3.) Defendant Nos. 1 to 3 only contested the suit. Defendant No. 4 become ex parte. In a joint written statement defendant Nos. 1 to 3 contended that there was a prior partition between the original plaintiff and defendant No. 4 and the properties which were sold by defendant No. 4 fell to his share. The allegation that defendant No. 4 had lost his eye sight was denied. It was further averred that defendant No. 4 alienated the property for his legal necessities and the consideration amount was duly paid to him.