DAKE BAGARTI Vs. MUKUNDA KHAMARI
HIGH COURT OF ORISSA
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Ray, C.J. -
(1.) This is an appeal by defendant 2 in a suit for recovery of possession of certain lands appertaining to raiyati holding No. 70 of mouza Sahala, described in all material details in a schedule attached to the plaint.
(2.) Defendant 1 was the owner of the said lands. He transferred them on 23 41941 by a sale deed to the plaintiff for consideration. The plaintiff stepped into possession of the said lands along with other lands similarly sold to him by defendant 1 aforesaid. Defendant 1 later gave the same lands to defendant 2 who has since taken possession thereof and inspite of repeated demands did not give it up. The suit was contested by both defendants 1 and 2. The present contest mainly centres round the priority of title of either the plaintiff or defendant 2. Defendant 2's case is that defendant 1 and his son surrendered the suit lands to Lambardar Gountia on 30.5-1941 who, in his turn, on 31-51941 for consideration settled the suit lands and other lands with this defendant and that ever since, he has been in possession of the same. The trial Court had dismissed the plaintiff's suit. The learned lower appellate Court reversed the trial Court's decree and decreed the suit granting him reliefs of declaration of title and restoration of possession. The alleged deed of surrender is Ex. a and the deed of settlement for the raiyati patta in favour of defendant 2 is Ex. B. The dispute, whether the suit lands form the subject-matter of transfer in the sale deed Ex. 1, has been at rest in the learned lower appellate Court who finds : "In these circumstances, there cannot be any manner of doubt that suit lands which are known as Pankel At as also as Mahul At had been sold by defendant 1 to plaintiff under Ex. 1, the sale deed." The contention relating to this has not been reiterated before us in the second appeal.
(3.) The fact that the plaintiff got possession in pursuance of the sale deed in his favour, has also been set at rest and has not been agitated at the bar. The learned lower appellate Court observes: "I find therefore that plaintiff purchased the suit lands and other lands from defendant 1 under Ex. 1, the sale deed and was in possession of the suit lands for about a year and subsequently he was dispossessed from the same by defendant 2.";
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