Decided on November 11,1953



Narasimham, J. - (1.) This appeal is by defendant No. 1 against the appellate judgment of the District Judge of Balasore reversing the judgment of the Munsif of Bhadrak and decreeing the plaintiffs' suit for declaration of title and confirmation of possession in respect of about 2.294 acres of raiyati lands situate in villages Ajmatpur and Bargade in Bhadrak sub-division.
(2.) The disputed properties appertain to khata No. 41 of Ajmatpur and khata No. 119 of Bargada and originally belonged to one Nalu Puntia after whose death in 1924 his widow Mauli Bewa became the limited owner. The total properties which devolved on Mauli Bewa after her husband's death consisted of 3-66 acres of which .01 cent. was homestead in which her residential house wag situated. On 21-5-27 Mauli Bewa executed a sale deed (Ext. 6) conveying 3.65 acres of her properties in favour of defendants 3 to 5 who are the sons of her maternal uncle for a sum of Rs. 250/-. By this sale deed, she practically transferred all her properties except .01 cent, containing her residential house. On 13-5-41 she executed another sale deed (Ext. D) conveying 3.52 acres of her properties to defendant No. 1. This slight difference in area was due to the Current Settlement which took place in 1924-28. The case of defendant No. 1 was that the first sale deed of Mauli Bewa (Ext. 6) in favour of defendants 3 to 5 was a bogus deed by which no title passed, that Mauli Bewa continued to remain in possession of all the properties of her husband till she transferred them to defendant No. 1 by the sale deed (Ext. D) dated 13-5-1941; but by way of abundant caution defendants 1 and 2 thought it prudent to take two other sale deeds (Exts. 4 and 5) from defendant No. 3 on 13-10-41 conveying the same properties to them. At this stage it may be noted that defendants 3, 4 and 5 are own brothers who were living jointly; defendant No. 3 being the karta of the family residing in the village. Defendants 4 and 5 were taking out their livelihood in Calcutta. On 24-4-44 the plaintiffs managed to secure another sale deed (Ext. 3) from defendants 4 and 5 by which they conveyed their two-thirds share of the properties to the plaintiffs for a sum of Rs. 250/-. The plaintiffs alleged that by virtue of the sale deed of 1944 from defendants 4 and 5 they were entitled to two- thirds share of the properties and as defendant No. 1 interfered with their possession of the same they filed the suit for declaration of title and confirmation of possession. The cause of action is alleged to have taken place on 22-6-45 and the suit was instituted on 4-12-45. The learned Munsif held that Mauli Bewa'a first sale deed dated 21-5-27 was a bogus sale deed by which no title passed and that she continued to remain in possession of the disputed properties till the execution of her second sale deed dated 13-5-41 (Ext. D) in favour of defendant No. 1. The motive for the execution of such a bogus deed was alleged to be her attachment for the family of defendants 3 to 5 whose father (her maternal uncle) had brought her up from her infancy and given her in marriage. It was suggested that she was anxious that after her death the properties should devolve on her maternal cousins (defendants 3 to 5) and with a view to avoid litigation with her husband's reversioners she executed that sale deed making it appear as if it was executed for legal necessity by a limited owner for consideration. In view of this finding of the learned Munsif, he held that defendants 3, 4 and 5 did not acquire any title to the properties by virtue of Mauli's first sale deed (Ext. 6) and consequently defendants 4 and 5 could not convey any title to the plaintiffs by their sale deed (Ext. 3) dated 24-4-44. Hence, he dismissed the suit.
(3.) The lower appellate Court, however, held that the first sale deed of Mauli Bewa was a valid sale deed for consideration by virtue of which title to the properties passed to defendants 3 to 5. On the question of possession, it held that the evidence placed by both parties was unworthy of credit. Then relying on the well- known decision of the Privy Council reported in --'Runjeet Ram Pandey v. Goburdhun Ram Pandey', 14 Moo Ind App 203 (PC) (A), ib thought that presumption of possession should follow title and inasmuch as defendants 3, 4 and 5 were held by it to have acquired valid title to the properties by the first sale deed of Mauli Bewa (Ext. 6) they must be deemed to have been in possession till the execution of the sale deed (Ext. 3) by defendants 4 and 5 in favour of the plaintiffs. Hence it decreed the suit with costs.;

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