HEMALATA DEVI Vs. PRAMOD KUMAR PATRA

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for recovery of possession and realisation of damages at the rate of Rs. (sic) per day in respect of a house situated over the property described in the schedule appended to the plaint. Pramod Kumar Patra, defendant No. 1 was the main contestant in the suit. His father Kandha Patra was defendant No. 2 and upon his death, his 5 daughters were substituted as defendants 2/a to 2/e.

(2.) Plaintiff's case, shortly stated, was that Kandha Patra, defendant No. 2 out of his own earning had purchased the suit property and the house standing thereon and since purchase he had been possessing the same as owner thereof. After death of his wife, he married Hema Patra, defendant No. 3. During his life time he transferred a portion of the suit house (7 cubitas x 100 cubitas) by registered sale deed D/- 21-6-1972 in favour of defendant No. 3 and put her in possession. It was asserted that both defendants 2 and 3 sold the suit property and the house standing thereon by two different sale deeds dated 4-5-1973 to the plaintiff and left for Belaguntha. Since purchase, plaintiff acquired title thereto and possessed the same on her own right. Since defendant No. 1 had no house of his own he occupied the suit house with the permission of the plaintiff for a week. Thereupon he did not vacate the suit house. As a consequence he was served with a registered notice to give vacant possession. When he did not pay any head to such notice, plaintiff filed the present suit claiming the reliefs as aforesaid.

(3.) Defendants 2 and 3 did not file written statement and were set ex parte. Upon death of defendant No. 2, his legal representatives were substituted and of them minor defendants 2/c and 2/d filed written statement through G. A.1. supporting the case of defendant No. 1. The other substituted defendants did not appear. The main contesting defendant, namely, defendant No. 1 while denying title of defendants 2 and 3 to the suit property pleaded, inter alia, that his maternal grand-father Brundaban Choudhury had purchased the aforesaid property in the name of his father (defendant No. 1) for the benefit of his mother Saraswati. He further urged that his father being a poor man had no means to purchase the property in question and his mother Saraswati being the exclusive owner thereof was possessing the same on her own right. Upon her death it devolved upon his sisters and they are occupying the same as owners. He denied the plaintiff's case that defendant No. 3 is the legally married wife of his father. According to him, she is the widow of one Harihar Pande. Upon the death of his mother Saraswati, she (D-3) was brought by his father to look after his children. In the year 1971 his father suffered from paralysis and high blood pressure and thus was totally dependent on defendant No. 3 who having prevailed upon him got a nominal sale deed in respect of a part of the suit property (7 cubits x 100 cubits) executed on 21-6-1972 in her name. He specifically urged that though the suit property comes within Beguda Sub-registry, but in order to get the sale deed registered at Bhanjanagar, defendant No. 3 got 1 cent of land in Bajaragada included therein and this being a fraud on registration, no title to the said property did pass to her. The deed is a fraudulent one and the same was got executed from defendant No. 2 when he was physically unwell and mentally imbalanced. By the aforesaid deed no title having passed to defendant No. 3, the plaintiff did not acquire any right or title in respect of the very same property which she alleged to have purchased from her. As regards the remaining portion of the suit property, defendant No. 1 stoutly denied the plaintiff's assertion that she purchased the same from defendant No. 2 on the very day defendant No. 3 registered the sale deed. He also denied and disputed the plaint averment that his possession of the suit property was permissive one, that is to say, on his request the plaintiff permitted him to occupy the suit house for 7 days only and thereafter he did not give vacant possession to her. Since his possession was not permissive, he denied his liability to pay any damage to the plaintiff as claimed.