RATAN KHARSEL Vs. BASAN BAG

JUDGEMENT

(1.) Plaintiffs are the appellants against the reversing judgment of the learned Subordinate Judge, Titilagarh, Plaintiff No. 1 is the brother, plaintiff Nos. 2 and 3 are the son and daughter respectively and defendant No. 3 is the widow of the late Dhanu Kharsel. Defendants 1 and 2 are strangers to the family being purchasers of the suit lands. The plaintiffs' case is that the late Dhanu Kharsel and plaintiff No. 1 were the jointly recorded tenants of Khata No. 40 of village Dangarpara and the lands including the sub lands comprised in Khata No. 40 are the joint properties of the late Dhanu Kharsel and plaintiff No. 1. The suit lands are locally known as Bagmara Bhag. After Dhanu Kharsel's death his right and interest devolved on plaintiffs 2 and 3 and defendant No. 3. Plaintiffs were always in possession of the suit lands, but in the year 1967-68 defendants 1 and 2 created trouble and declared that they had the right to possess the suit lands having purchased the same from defendant No. 3. During the Bujharat proceedings the plaintiffs came to know that defendant No. 3 as the guardian of minor plaintiff No. 2 had sold the suit lands by a registered deed of sale bearing No. 1018 of 1963. It is alleged that the sale by defendant No. 3 in favour of defendants 1 and 2 purported to be for a consideration of Rs. 1400/- is tainted with fraud and mis-representation, and is invalid for want of consideration, legal necessity and proper authority. Defendant No. 3 by herself had no right to transfer the suit lands which were the joint properties of the plaintiffs and defendant No. 3. It is also alleged that in the present settlement (in Progress) Bandi-Parcha had been wrongly issued in the name of defendant No. 2. The plaintiffs have accordingly prayed for declaration of their right, title and interest over the suit lands after setting aside the alleged sale in favour of defendants 1 and 2, for declaration that the sale of the suit lands in favour of defendants 1 and 2 was invalid, inoperative and void and for confirmation of possession, or in the alternative, recovery of possession through Court.

(2.) Defendants 1 and 2 contested the suit, but defendant No. 3 did not. The case of defendants 1 and 2 may be briefly stated. According to them, although the record-of-rights of Khata No. 40 stood in the names of the late Dhanu Kharsel and, plaintiff No. 1, the lands in that holding had been partitioned between them and there was no joint family or property so far as they were concerned. Dhanu Kharsel having died in the year 1945 his daughter, plaintiff No. 3 has no right, title and interest in the estate. Accordingly, it is denied that plaintiff Nos. 1 and 3 have any right, title or interest in the properties of the late Dhanu Kharsel. The possession of the plaintiffs over the suit lands is also denied. It is stated that defendant No. 3 and her minor son, plaintiff No. 2, were the owners of the suit lands and defendant No. 3 on her behalf and on behalf of plaintiff No. 2 sold the suit lands to defendants 1 and 2 in 1963 in order to repay her past debts for a consideration of Rs. 1400/-. The sale was for consideration and legal necessity. Defendant No. 3 delivered possession of the suit lands to defendants 1 and 2 who have been in continuous and peaceful possession of the same since the date of sale. The allegations of the plaintiffs that the sale was void for want of consideration, legal necessity and authority and fraud and misrepresentation are denied. The suit lands were surveyed by the Settlement Officers during the present settlement proceedings and on the basis of the sale and possession, draft rolls have been issued in favour of defendants 1 and 2.

(3.) The main findings of the learned Munsiff who tried the case are as follows: (1) that defendant No. 3 came into possession of the lands which constituted the legitimate share of her deceased husband by virtue of a compromise between her and plaintiff No. 1 in Revenue Case No. 14/92 of 1949-50 in the file of the Tahasildar, Titilagarh (Ext.B D/18-11-1949); that consequent upon the compromise there was a partition and the share of the late Dhanu Kharsel was possessed by defendant. No. 3 and her minor son, plaintiff No. 2, and plaintiff No. 1 ceased to have any legal claim, right or interest in the lands given to defendant No. 3 under the compromise and (2) that the sale (Ext.A D/-11-5-1963) was for consideration, that after receiving the consideration defendant No. 3 had executed the sale deed which was scribed according to her instruction and that sale was not tainted with fraud or misrepresentation, but that the sale could not receive any legal sanction and was void as defendant No. 3 had no power to alienate her undivided interest in the suit lands in disregard of the interest of the minor plaintiff No. 2 and as defendants 1 and 2 had failed to prove the existence of any legal necessity for the sale. Accordingly the learned Munsif decreed the plaintiff's suit without costs. The right, title and interest of plaintiff No. 2 and defendant No. 3, not plaintiff No. 1, in respect of the suit lands were declared, the sale deed Ext.A was declared void and cancelled and plaintiff No. 2 and defendant No. 3 were held to be entitled to receive possession from defendants 1 and. 2. Defendants 1 and 2 were also held to be entitled to claim refund of the consideration money which they had paid to defendant No. 3 under S.73 of the Contract Act.