MINATI BEHERA Vs. NAMITA BEHERA

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution, challenge is made to the order dated 3.8.2018 passed by the learned 3rd Addl. Civil Judge (Senior Division), Cuttack in C.S (I) No.372 of 2015 whereby and whereunder learned trial court has rejected the application of defendant no.2 under Order 1 Rule 10(2) CPC to transpose her as plaintiff.

(2.) One Nishamani Behera has instituted the suit for declaration that the registered sale deed dated 17.5.2018 executed by her son Mohan in favour of defendant no.1 is void, partition of the suit schedule property and permanent injunction.

(3.) Case of the plaintiff was that Madhusudan Behera was the common ancestor of the plaintiff and defendants 2 to 5. He died in the year 1993 leaving behind his wife, plaintiff and son Mohan. Mohan died in the year 2014 leaving behind his widow Minatidefendant no.2 and two sons, defendants 3 and 4 and daughterdefendant no.5. The suit property originally recorded in the name of Madhusudan. After death of Madhusudan, the suit property was mutated in the name of plaintiff and Mohan in Mutation Case No.687 of 2002. While matter stood thus, Mohan alienated the suit schedule property in favour of defendant no.1 by means of a registered sale deed dated 17.5.2008. The suit property is the ancestral property of the plaintiff and defendant nos.2 to 5. Mohan had no exclusive title over the same. He had no right to alienate the same in favour of defendant no.1.