Decided on April 28,1978



- (1.) Defendants have carried this appeal against the reversing judgment and decree of the learned Subordinate Judge of Parlakhemundi in a suit for declaration of title, confirmation of possession and other consequential reliefs.
(2.) According to the plaintiff, the disputed property which is an acre of land originally belonged to defendant No 1, On 19-3-1964, defendant No. 1 entered into an agreement (Ext. 1) with the plaintiff for sale of six acres of land three acres of cultivable land and three acres of podor land - for a total consideration of Rs. 3,300/- out of which Rs. 1,200/- was paid by way of part payment and it was stipulated that the document would be registered within two months on payment of the balance consideration. The property was then under a mortgage and by arrangement with the mortgagee, plaintiff was put in possession of the property covered by the agreement of sale. Defendant No. 1 avoided to complete the deal. Subsequently plaintiff found out that defendant No. 1 had gifted away the properties in favour of his wives - defendant No. 2 and Lalitamma. When plaintiff pressed for the document, defendant No. 1 absconded and the sale contemplated under the agreement never materialised. In 1969, on the intervention of some of the relations of defendant No. 1, it was decided that the plaintiff shall have title to one acre of land (the disputed property) in lieu of the advance amount of Rs. 1,200/-. A sale-deed was accordingly executed in his favour being Ext. 2 by defendant No. 2 for herself and as mother-guardian of the third defendant (then a minor) in the absence of defendant No. 1 and plaintiff is alleged to have surrendered possession of the remaining property covered by Ext. 1. In 1970, defendant No. 1 returned and started disturbing the possession of the plaintiff over the disputed property. Plaintiff, therefore, instituted the suit on 4-7-1972.
(3.) Defendants 1, 2 and 4 filed a joint written statement while the minor defendant No. 3 filed a separate written statement through the guardian ad litem. It was pleaded that the property in dispute was the joint family property of the members of the family and thus the third defendant had a share in it. The second defendant was not entitled to make the alienation. There was neither legal necessity nor any pressure to the estate and the minor has not at all derived any benefit out of the sale. It was further pleaded that the advance of Rs. 1,200/- had been refunded when plaintiff failed to complete the deal for want of funds and that the plaintiff did not acquire title under Ext. 2. The guardian of defendant No. 3 had also advanced similar contentions.;

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