A. K. Rath, J. - (1.) This is a defendants' appeal against reversing judgment.
(2.) Godabari Maharana, predecessor-in-interest of respondent nos.1(a) to 1(e), as plaintiff instituted the suit for recovery of possession and mesne profits. Case of the plaintiff was that one Charan had two wives, namely, Champa and Parbati. Rukuna is the daughter of Champa. The widows of Charan intended to adopt the plaintiff. As they could not adopt the plaintiff as their son, they executed a registered deed of settlement on 19.11.1943 with the condition that none of them i.e. Champa, Parbati and the plaintiff would be entitled to sell any land of Charan to any person. The plaintiff would maintain them and after their death, the plaintiff would be the sole owner of the properties. Champa died in the year 1957. Parbati and the plaintiff jointly sold some of the lands to different persons including Raghu Naik in the year 1953. Thereafter, Parbati sold the suit schedule property to the defendants. The plaintiff filed T.S. No.38 of 1962 in the court of the learned Subordinate Judge, Berhampur against Parbati for recovery of possession. The suit was dismissed for default. The plaintiff again filed T.S. No.86 of 1971 in the court of the learned Munsif, Aska against Parbati and the defendants claiming the suit schedule properties. The suit was dismissed on the ground that it was barred under Order 9 Rule 9 CPC. The same was dismissed. First Appeal filed by the plaintiff having been dismissed, he filed Second Appeal No.242 of 1978 before this Court, which met the same fate. It was further pleaded that Parbati had limited interest in the suit schedule properties in view of the deed of settlement dated 19.11.1943. Therefore, alienation made by Parbati in favour of the defendants is void and not binding on the plaintiff. As per the conditions laid down in the deed of settlement dated 19.11.1943, the plaintiff is the rightful owner of the suit schedule property. He is entitled to possess the same after the death of Parbati in the year 1981. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
(3.) Defendants entered contest and filed a written statement denying the assertions made in the plaint. Case of the defendants was that Parbati and Champa had not executed the registered deed of settlement dated 19.11.1943 in favour of the plaintiff. After death of Charan, Champa and Parbati became the absolute owner of the properties. The deed of settlement dated 19.11.1943 might have been obtained fraudulently by the plaintiff from Parbati. The plaintiff has not acquired right, title and interest over the suit schedule properties. Parbati was a party in T.S. No.38 of 1962. She filed a written statement stating that the deed of settlement was a sham one. The plaintiff has not sold any land jointly in favour of Raghunath Naik. Parbati died on 2.8.1981. For legal necessity, Parbati sold the suit schedule property to the defendants by means of registered sale deeds for a valid consideration. The defendants are in possession of the suit schedule land. Parbati gifted Ac.0.08 cents of land to defendant no.7. Defendant no.2 is in possession of the said land on behalf of defendant no.7. In RMC No.342 of 1979, the Tahasildar, Digapahandi mutated the property in favour of defendant no.2. The plaintiff was a party to the said case. The present suit is barred by res judicata. Parbati being the absolute owner of the suit schedule property transferred the same in favour of the defendants by means of registered sale deeds.;