NARAYAN PRASAD MAITY Vs. DAITARI DAS AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff against a reversing judgment of the Subordinate Judge, Bhadrak and arise 's out of a suit brought by him for declaration of his title to and confirmation of his possession over the disputed land measuring 1.331 acres. He also prayed in the alternative for recovery of possession of the property in case he is found dispossessed from the whole of the disputed property or any portion thereof. One Sapani Biswal was admittedly the owner of 5. 84 acres of land covered by khata No. 89 in mouza Chhenakhia situated within the Sub -registry of Chandbali. Sapani had four sons Darsan, Bauri, Sindhu & Ananda. Darsan had three son a Jujesti, Jagabandhu and Kelu. Jagabandhu was the father of Kailas Sindhu 's son is Bhaskar. By 7 -3 -1951, Darsan and Sindhu were dead. On 7 -3 -1951, the sale deed Ext. 5 was executed in favour of the Plaintiff by Kelu, Kalias, Jujesti, Bauri and Bhaskar Defendant No. 8 Krushna who was then 11 years old also joined in execution of the sale deed. In that document he was described as the son of the deceased Ananda and represented by his uncle guardian Bauri Biswal. The sale deed was in respect of the entire 5. 34 acres of land covered by khata No. 89 of mouzi, Chhenakhia and one decimal of land forming a part of plot No. 20 appertaining to khata No. 1 of mouzi, Anantapur situated within the sub -registry of Soro. The document was registered in the Soro Sub -registration office. The Plaintiff 's case is that at the time Ext. 5 was executed, Anand a was untraced and was consequently presumed to be dead and that therefore when the Kabala Ext. 5 was executed, Ananda 's son Krushna joined in execution of the Kabala to represent his interest. Ananda subsequently returned to the village and on 29 -1 -1952, he executed what is described as a Nadabi Patra (Ext. 4) in favour of the Plaintiff relinquishing his one -fourth share in the 5.34 acres of land covered by khata No. 89 of Chhenakhia. Ext. 4 was unregistered. On 12 -12 -1962, Ananda executed a registered sale deed Ext. A in respect of his one -fourth share in the properties covered by khata No. 89 of mouza Chhenakhia in favour of Defendants 2 to 6. Defendant No. 6 is the wife of Defendant No. 1 shortly after the execution of the sale deed Ext. A, Ananda died. It is alleged in the plaint that ever since the execution of the sale deed Ext. 5 the Plaintiff has been in possession of the entire properties purchased there under, but that in the year 1963 Defendants 1 to 5 threatened to dispossess him from the disputed land which is a one -fourth share of khata No. 89 referred to above. As the matter was reported to the police they seized the crops standing on the disputed land and kept the same in Zima of Defendant No. 7. It is in these circumstances that the suit giving rise to this appeal was filed by the Plaintiff claiming the reliefs above -mentioned. Besides Defendants 1 to 7, Defendant No. 8 Krushna the alleged son of Ananda and Defendant No. 9 Kati Dei the widow of Ananda have been impleaded as Defendants.

(2.) THE suit was contested only by Defendants 1 to 6. They contended that the one decimal of land situated in mouza. Anantapur which was included in the sale deed Ext. 5 did not belong to the vendors thereof and being folly aware of it this property was included in the sale deed Ext. 5 with the sole object of conferring jurisdiction on the Sub -Registrar of Soro to register the document and consequently it is a fraud on the Registration Law and no registration obtained by such means would be valid. Ext. 5, therefore, is invalid. As Ananda had admittedly a one -forth share in the property covered by khata No. 89 in mouza. Chhenakhia and he did not join in execution of the sale deed, that document, even if it is otherwise valid, can not operate to convey the interest of Ananda therein, Krushna who joined in the execution of the sale deed Ext. 5 describing himself as the son of Ananda is not Ananda 's son but is the Bon of Bauri. The subsequent deed of relinquishment Ext. 4 which Ananda executed in favour of the Plaintiff being unregistered could not convey Ananda 's interest in the property to the Plaintiff.

(3.) ON appeal, the learned Subordinate Judge held that one decimal of land situated in mouza Anantapur included in Ext. 5 did not belong to the vendors, that they had no intention to transfer the same, that the Plaintiff never obtained possession of the same and that it was included in the sale deed \with the sole object of conferring jurisdiction on the Sub -Registrar of Soro to register the document. In the circumstances he held that there was fraud on registration and consequently the sale deed Ext. 5 is invalid. He construed Ext. 4 not as a mere acknowledgment but as a document under which title was Bought to be relinquished, and held that for want of registration it is invalid. On the question of possession his finding is that the Plaintiff was not in continuous possession of the disputed property for a period of twelve years preceding the institution of the suit. He also held that Krushna is not the son of Ananda. In the result, he allowed the appeal, Bet aside the judgment and decree passed by the learned Munsiff and dismissed the suit. Hence this appeal by the Plaintiff.