Decided on April 09,2021

Rajendra Pr Nag Appellant
INDUMATI Respondents


D. Dash,J. - (1.) The Appellants, by this Appeal under section 100 of the Code of Civil Procedure (for short 'the Code') assail the judgment and decree dated 30.07.2005 and 12.08.2005 respectively passed by the learned Additional District Judge, (F.T.C.), Bolangir in Title Appeal No. 08/06 of 2002-2005. By the said judgment, the First Appellate Court in that Appeal under section-96 of the Code has set aside the judgment and decree dated 29.11.2001 and 06.12.2001 respectively passed by the learned Civil Judge (Junior Division), Bolangir. One Ujal Nag as the original Plaintiff had filed the suit against Rajendra Prasad Nag who happens to be his nephew (son of his brother namely Kandarpa). During suit, the original Plaintiff Ujal having died his four daughters have been substituted as Plaintiffs whereas one son and a daughter are arraigned as the Defendant Nos.2 & 3. The Suit having been dismissed by the Trial Court, the Plaintiffs carried the First Appeal. The lower Appellate Court having allowed the Appeal, has decreed the Suit. This Appeal had been filed by the Defendant No.1 and he having died, his legal heirs are pursuing this Appeal. It may be further stated that during pendency of this Appeal, the original Appellant (Defendant No.1) having died his daughters have came to be substituted as Appellants. Thereafter, one of the daughters having died, her name has been expunged as dead since all her legal heirs are on record. The Respondent No.1 (Plaintiff No.1) having died, her legal representatives have also come on record as Respondent No.1(a) to 1(c). The defendant no 2 having died; her name has been expunged as dead.
(2.) In order to bring in clarity and avoid confusion; the parties hereinafter have been referred to as per their position assigned as would have been so assigned had the event taken place during suit.
(3.) Facts of the case run as under:- Plaintiff-Ujal and Kandarpa, the father of the Defendant No.1 are two brothers. They were living separately and had no ancestral property. The Defendant No.1 survived Kandarpa being his only son. It is the case of the Plaintiff that he had two wives namely, Mathura and Ainla. They use to reside separately; one at Bolangir, and the other one at Mathura. Plaintiff used to reside with first wife for the sometime and second wife at her place of residence during the rest. It is stated that the Plaintiff became blind when he attained the age of eighteen and for that he used to take the help of his brother Kandarpa as well as his nephew this Defendant No.1 for attending to his official matters. It is also the case of the Plaintiff that the Defendant no1 and his father, Kandarpa were residing in their house at Bolangir which adjoins the suit land described in Schedule-'A' of the plaint; over which a house was also situating. It is stated that the Plaintiff is the rightful owner in possession of the suit land. When the matter stood thus, during the second phase of the current settlement operation, the Defendant No.1 falsely staked his claim over the suit land and house on the strength of purchase and possession of the same pursuant to that. The Plaintiff was totally surprised by the advancement of such false claim from the side of his nephew. The Defendant No.1 then in the settlement operation of the year, 1971 falsely claimed that Schedule-'A' property has been purchased under a registered sale-deed for consideration of Rs.580/- from the Plaintiff. According to Plaintiff, he had never sold the property nor executed any sale-deed. It is alternatively, stated that if at all any sale-deed is there, it has been obtained by fraud, misrepresentation and impersonation as against him. The possession of the Defendant No.1 is also denied. It is stated that about 10 years prior to the suit, when Purandar Nag, elder brother of the Defendant No.1 wanted to live with a lady of another community, he faced resistance and difficulty for keeping her. So he was so permitted by the Plaintiff to reside in his house standing on the suit land. According to the case of the Plaintiff, the Defendant No.1 has no right, title, interest and possession over the suit land. With all these pleadings, the Plaintiff by instituting the suit on 23.07.1973 has prayed for declaration of his right, title, interest and possession over the suit land and house standing thereon by declaring the sale-deed as null and void. ;

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