- (1.) Both the appeals arise out of a common judgment and decree both dated 1 st of October, 1991 passed by learned Assistant District Judge, 3 rd Court District Midnapur in Title Appeal No.429 of 1986. The plaintiff Radha Ranjan Das (since deceased) is the appellant in S. A. 133 of 1994. Proforma defendant Nos. 2 and 3 Nirmal Kumar Das and Kshudiram Das are the appellants in S. A. No.134 of 1994.
(2.) The plaintiff Radha Ranjan Das filed a suit being Title Suit No.171 of 1982 in the Court of learned Munsif, 2 nd Court at Tamluk district Midnapur with the following averments:- Plaintiff s father Phanindra Krishna Das and his six brothers used to possess joint properties according to their own shares by virtue of an amicable settlement and those properties were recorded in their respective names in R. S. records. Before revisional settlement, plaintiff s father died leaving plaintiff Radha Ranjan Das and his brother Radha Raman Das as his heirs who inherited his properties in equal shares including suit Dags. They initially possessed their properties in Ejmali but before R. S. settlement they separated in mess and property and accordingly their properties including suit Dags have been recorded separately in their names in separate khatians. By said amicable settlement plaintiff got his share in suit Dags as described in schedule ka of the plaint and in other non-suit properties. Plaintiff s brother Radhan Raman Das sold his share of suit Dags to proforma defendant Nos. 2 and 3 through a registered kobala dated 03.05.1970. Proforma defendant Nos. 2 and 3 later on filed Title Suit No.5 of 1970 in the Court of learned Sub-Judge, Midnapur for partition of their purchased properties through said kobala dated 03.05.1970. For long plaintiff was residing in Orissa and had landed properties in several districts of Orissa. As plaintiff was residing in Orissa he was dependent on defendant No.1 Ashok Kumar Das, his cousin brother, regarding cultivation and looking after of plaintiff s properties including suit properties situated in Midnapur district. As both plaintiff and defendant No.1 were made defendants in the partition suit being Title suit No.5 of 1970 filed by proforma defendant Nos. 2 and 3, plaintiff as per advice of defendant No.1 agreed to execute a power of attorney so that he need not come to Midnapur off and on to make tadbir in said partition suit. The plaintiff accordingly executed the impugned suit deed at the instance of defendant No.1 believing that the same was a power of attorney. Trusted persons of defendant No.1 were deed writer and witnesses of said deed which was written in Oriya language. Plaintiff can neither read nor write Oriya language though he understands Oriya language. As plaintiff was dependent on defendant No.1 for looking after his properties at Midnapur District and also trusted defendant No.1, so, he executed said deed believing it to be a power of attorney. Defendant No.1 made some constructions in his land after encroaching plaintiff s lands in Dag No.1740 and Dag No.1741 / 4758. Though defendant No.1 initially agreed to demolish said encroached portions but ultimately he did not demolish the same. Lastly, on 15 th of March, 1982 defendant No.1 alleged to the plaintiff that plaintiff executed a deed of gift dated 02.12.1970 i.e., impugned deed in favour of defendant No.1 in respect of entire Dags 1740, 1741/4758, 1739 and 1738 of Narkeldanga Mouza together with ka-2 schedule properties. Plaintiff obtained certified copy of said alleged deed of gift on 06.08.1982 and came to know that defendant No.1 obtained said deed of gift dated 02.12.1970 by practising fraud, misrepresentation and undue influence upon the plaintiff in the name of obtaining a power of attorney. One decimal of land out of 3 acres 37 decimals of land in Khata 897 mouza Guri District Baleswar was included for registration of said document within the District of Baleswar though plaintiff did not own said land. As such said deed of gift was also executed by practising fraud on the registrar of Baleswar by falsely incorporating some lands within jurisdiction of Baleswar. Accordingly, plaintiff filed said suit praying for declaration that alleged deed of gift dated 02.12.1970 mentioned in ka - 1 schedule of the plaint regarding ka schedule properties and other properties was null and void, illegal and not binding on the plaintiff and that the defendant No.1 had no right title or possession in those properties on the strength of said alleged deed of gift and that the plaintiff has right, title and interest thereupon, together with a decree for permanent injunction.
(3.) Respondent defendant No.1 Ashok Kumar Das contested said suit by filing a written statement alleging as follows:- The suit was not maintainable as it was framed and was barred by Section 34 of the Specific Reliefs Act. Plaintiff s father Phanindra Krishna Das had properties at Baleswar district at Bighra and Gurpai in Orissa as also in the Midnapur district. On the death of plaintiff s father plaintiff and his brother Radha Raman became owner of said properties in equal share. Radha Raman used to reside at Mouza Khaidighi as a practising doctor. Before plaintiff s father s death plaintiff used to reside at Baleswar district of Orissa and looked after landed properties. Before R. S. record plaintiff and his brother Radha Raman partitioned their property by amicable arrangement and accordingly plaintiff s brother Radha Raman got all their ancestral properties situated at Khaidighi and other mouzas exclusively and plaintiff got all properties of Moyna P. S., Tamluk and Baleswar exclusively. At the time of R. S. operation plaintiff was living at Baleswar and erroneously suit Dags were recorded in the names of both brothers. Plaintiff sold some of his properties from Moyna P. S. to different persons as sole owner. Defendant No.1 s father and plaintiff s father were full brothers. Plaintiff had good relation with defendant No.1 and his sister Prova Rani having their nickname as Samanta and Rani respectively. Plaintiff wanted to purchase some lands at Sailendra Nagar and Katak district and wanted to sell some non-suit Dags measuring about 2 acres 52 decimals which he possessed exclusively, to defendant No. 1 s sister Protiva Rani. There was oral agreement of sale and some money was also sent to plaintiff by money order and plaintiff delivered possession of those properties to Prova alias Rani. Plaintiff had good relation with this defendant No.1 and being satisfied with his work regarding looking after of plaintiff s properties at Midnapur district wanted to gift entire suit lands to defendant No.1 and delivered possession of the same since 1367 B. S. Defendant being in possession of the suit properties constructed pucca house and other constructions thereupon. The plaintiff was well-versed in Oriya language and he himself engaged the scribe and witnesses for writing the deed of gift dated 2.12.1970 in favour of the defendant. The plaintiff also included said one decimal of land of Guri mouza in said deed of gift willfully. This defendant No.1 can neither read nor write Oriya language. The plaintiff in collusion with defendant Nos.2 and 3 s father filed this false suit. Defendant Nos. 2 and 3 managed to obtain a fictitious and void document and filed the partition suit with false averments. The plaintiff s suit is liable to be dismissed with costs.;