Decided on October 31,1973

Chandan Sing Negi Appellant
Kailash Chandra Khandelwal And Ors. Respondents


S.K. Ray, J. - (1.) THIS appeal is by Defendant No. 1 from the confirming decision dated 15 -12 -1969 of the Sub -Judge, Sambalpur in T.A. No. 12/3 of 1968.
(2.) THE Plaintiffs filed the suit for declaration of title and recovery of possession of Schedule B -2 lands and for damages. Schedule B -2 is 23 decimals of land from plot No. 319 appertaining to raiyati khata No. 22 of mouza Bad Dumermunda, Tahasil Kuchinda in the ex -state of Bamra. The entire khata No. 22 comprises of 37.89 acres of land. It stood recorded in Mopherson settlement in the names of Manbodh, Hadi and Madan, three sons of one Dha. In other words the three brothers were recorded tenants in respect of the Raiyati Khata No. 22. In a family partition of the year 1948 or 1949 Schedule A lands comprising of 7. 85 acres out of Khata No. 22 including the entire plot No. 319 fell to the share of Manbodhs branch. Bhagirathi, son of Manbodh then applied for Kandhua Khatian which was prepared in due course. On the death of Bhagirathi in the year 1962, his properties were inherited by his son Chamar, Defendant No. 4. By a series of sale transactions always accompanied by delivery of possession, the first sale being by Bhagirathi to Defendant No. 5 on 16 -7 -1947 (Ex. 2), the suit land came to the Plaintiffs under the last sala transaction of the series which was by Defendant No. 6 to the Plaintiff No. 2 for Rs. 50/ - by an unregistered sale deed dated 13.4.1953 (Ex. 3). On 27 -3 -1953, Bhagirathi acknowledged and accepted the aforesaid sales by a document Ex. 7 dated 27 -4 -1953. Thus, the Plaintiffs acquired title to and possession over the suit land on 13 -4 -1953. Defendant No. 1 took the suit land on lease for a period of 3 years from the Plaintiffs on monthly rent of Rs. 4/ - for the non -agricultural purpose of constructing a temporary hut on it and residing therein, and executed an agreement to that effect in Plaintiffs ' khata book (Ex. 8) on 14.3.1957. Thereafter, Defendant No. 1 constructed a hut and paid rent regularly to the Plaintiffs till 31.3.1960 and, such payments were also entered in the khata books of the Plaintiffs (Ex. 9 series). Then Defendant No. 4, son of Bhagirathi, sold Schedule D lands including the suit land and other lands to the Plaintiffs en 22 -5 -1963 for valuable consideration after obtaining permission from the concerned revenue authorities, as he was a member of schedule tribe and the vendees were members of non -scheduled tribe. Thereafter, Defendant No. 1 purchased the very suit land from Defendants 2 and 3, but it is alleged that this sale was without consideration. After expiry of 3 years, Plaintiffs asked Defendant No. 1 to vacate the suit land by notice dated 11 -9 -1960 and again in December, 1965 they demanded vacant possession of the suit land from him together with arrears of house rent and damages. This, in substance, is the Plaintiffs ' case. The Defendant No. 1 's case is that there was no partition amongst the three brothers, Manbodh, Hadi and Madan. Hadi, as karta of the family, gave the whole plot 319, which includes the suit lands, to Defendant No. 1 under an agreement of sale. In pursuance of this agreement, Defendant No. 1 got a registered sale deed in respect of the same from Defendants 2 and 3 on 21 -6 -1963 and these by acquired title thereto. He has denied the best of the Plaintiffs ' case including his tenancy under the Plaintiffs. Defendant No. 1 has constructed a pucca house and a well on the disputed land without any objection from any quarter.
(3.) THE findings of the trial Court are that Raiyati khata No. 22 was partitioned amongst three brothers Manbodh, Hadi and Madan in 1949 and the suit land fell to the share of Manbodh. Plaintiffs perfected their title to the suit land by adverse possession at least by the time of the suit i.e. by 30 -9 -1966. The Plaintiffs thereby acquired tenancy right in respect of the suit land. It was also found that they had inducted the Defendant No. 1 as tenant under them in respect of the suit land and Defendant No. 1 is estopped to deny landlords title of the Plaintiffs. Accordingly, there ' was relationship of landlord and tenant between the Plaintiffs and Defendant No. 1. The various sales enumerated in the plaint beginning from 16 -7 -1947 were held to be invalid.;

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