SURASEN DALABEHERA Vs. RAMA NAIK

JUDGEMENT

(1.) Defendant No. 1 has filed this appeal against the decision of the Subordinate Judge, Phulbani, decreeing in part the suit declaring that defendant No. 1 has no right in the suit property conveyed to him by defendant No. 2 in a registered deed of gift dated 11.7.1977 and permitting the plaintiff to recover possession of the disputed land.

(2.) Plaintiff-respondent No. 1 filed a suit for declaration that defendant No 1 has no right over the disputed property, for recovery of possession and for permanent injunction. Chandra Dalabehera and Buti Dalabehara were two brothers. Plaintiff is the daughter of Chandra Dalabehera through first wife. whereas defendant No. 2 is the second wife of Chandra Dalabehera. Defendant No. 1 is the grandson of Buti Dalabehera As per the plaintiffs case, the disputed property belonged to Chandra Dalabehera and was jointly inherited by plaintiff and defendant No. 2 after the death of Chandra Dalabehera in the year 1976. There was no partition between the plaintiff -and defendant No, 2 and both of them were continuing in joint possession of the disputed land. Since Chandra Dalabehera had died without a male issue, his agnates put pressure on defendant No. 2 and forced her to execute some deed involving the suit property. Defendant No. 2 who is an illiterate, rustic and ignorant woman became a prey in the hands of those persons who took her to the scribe and managed to get a deed of gift executed in the name of defendant No. 1 who was hardly a boy of 15 to 16 years old at that time Defendant No. 2 had no independent advice. She was specifically told that she was executing a document that would come into effect after her death. The document was not acted upon. The plaintiff was not aware of the execution of such document for several years and came to know of such document in the previous year to the suit when defendant No. 1 sent information to her suggesting for execution of a similar document in his favour. The Bhadralok who had come to her had brought the deed and left it with her for consultation with her husband. The plaintiff on being aware of such gift deed discussed about the same with de fendant No, 2 and subsequently defendant No. 2 executed a deed of cancellation on 6.5.1980. However, when the same scribe was contacted, the scribe did not mention about the fraud and coercion practised on defendant No. 2 in the matter relating to execution of the gift deed. Thereafter, defendant No. 1 initiated a proceeding under Section 144, Code of Criminal Procedure, against the persons having no concern with the disputed property. The plaintiff and defendant No, 2 coming to know of this proceeding filed application for rescinding the ex parte order. However, the Magistrate attached the disputed land and the matter was carried to the revisional court. However, since defendant No. 1 was bent upon creating trouble over the disputed land, the suit was filed for the reliefs already indicated. In the plaint, it was specifically mentioned that defendant No. 2 was equally interested in the disputed property and could have joined as plaintiff, but she did not do so due to her old age. invalidity and low financial condition. After filing of the suit, Lot No. 1 of Schedule-A of the plaint was deleted by way of amendment on the footing that the said land had been sold away by plaintiff and defendant No. 2 prior to the filing of the suit. Prayer for recovery of possession was included.

(3.) Defendant No. 1 contested the suit by filing written statement. Apart from taking the technical pleas like under-valuation. payment of insufficient court-fee, non-joinder of necessary parties and question of limitation defendant No, 1 pleaded that the disputed property belonged to defendant No. 2 absolutely and plaintiff had no interest in the same at the time when the gift was made. It was further pleaded that the gift deed had been validly and voluntarily executed by defendant No. 2. The disputed property was purchased and/or acquired by late Chandra Dalabehera in favour of defendant No, 2 and late Chandra Dalabehera had no interest in the suit property and defendant No. 2 was possessing the same as absolute owner. Subsequently, on the instigation of some of the enemies of the family. a deed of Nadabi Patra was. taken away from defendant No. 2 without her knowledge and consent and the said Nadabi Patra was invalid and did not create any title in favour of Chandra Dalabahera and defendant No. 2 was the absolute and sole owner of the disputed property. In the alternative, it was pleaded that even assuming that Chandra Dalabehera was the owner of the disputed property, after his death his wife had twelve annas interest and the plaintiff could claim only four annas share and the deed of gift must be taken to be valid to the extent of twelve annas share of defedant No.2.