- (1.) This second appeal is by the contesting defendants in a suit for declaration of title of the plaintiff over 'A' schedule land with the house standing thereon and for delivery of possession of the same to the plaintiff and further if it is found that defendant No. 1 has title to the extent of 15 annas 6 pies, then for partition and to carve out the plaintiffs share of 6 pies in the property.
(2.) The plaintiffs case is that Bhahman Nijog of Uttar Bada and Dakshina Banda consisting of Bhahmin Supakars are the Sebaits of Lord Lingaraj and the said organisation resolved that the President of the Nijog should file the suit. The suit plot No. 737 belonged to Choudhury family of Bingharpur. Several houses stood on the same which were being used by members of the family. Ac.0.005 decimals out of the said plot was acquired for the purpose of road and the balance Ac.0.046 decimals is the suit land in which the family Deity Gopinath Deb had 15 annas 6 pies interest and Choudhury Ramanarayan Das had only 6 pies interest. Ananta Narayan Das, father of Ramanarayan as guardian executed a registered sale deed on 18-8-1956 in favour of the plaintiff Nijog in respect of 6 pies interest of Ramanarayan. The Choudhury family representing their family Deity Gopinatb Deb sold remaining 15 annas 6 pies interest in the suit property in favour of the plaintiff-Nijog and delivered possession of the same. Thus the plaintiff Nijog became owner of the entire, plot. Defendant No. 1 had a tea stall in a small thatched house standing on a portion of the land. He was paying rent of Rs. 5/- to the plaintiff after the plaintiff purchased the land. Subsequently, defendant No. 1 tried to record his name in respect of that thatched house in the Notified Area Council on the strength of a sale deed dated 9-8-1956 alleged to have been executed by the Manager of Bingharpur Estate in his favour. The sale deed covered Ac.0.044 i.e. 15 annas 6 pies interest of the Deity described in Schedule B of the plaint. The plaintiff objected to the same but ultimately the Board of Revenue by order dated 29-5-1963 directed that the record should stand in the name of the original assessee. Therefore, the Executive Officer of the Notified Area Council continues to record the name of the plaintiff's vendor. The plaintiff further alleges that the common manager appointed by the Distict Judge, Cuttack, in respect of Bingharpur Debottar Estate had never been entrusted with the properties of the estate nor had he ever taken possession of the land in question and the sale dated 9-8-1956 in favour of defendant No. 1 does not confer any title. The sale deed is also contrary to the sanction of the District Judge since the District Judge had allowed the Manager to execute only lease deed on annual rental of Re. 1 /-. Since the plaintiff had acquired good title over the land and requested defendant No. 1 to vacate the suit land but yet he did not vacate the same, the plaintiff filed the suit in question. In the suit, the vendors of the plaintiff-Nijog merely members of Choudhury family have also been arrayed as parties. 2-A. Defendant No. 1 as well as the Common Manager (defendant No. 47) contested the suit and others remained ex parte. Defendant No. 1 in his written statement took several legal objections with regard to maintainability of the suit namely, the Nijog not being registered, the suit is not maintainable; the suit is bad for defect of parties; the suit is barred by limitation and plaintiff had no cause of action for the suit. That apart, the stand of defendant No. 1 is that the plaintiff never had purchased the land on the basis of the two sale deeds as alleged and according to him the Common Manager was in possession and management of the property and of necessity after obtaining due permission from the District Judge sold the property to him and, therefore, he acquired good title over the land in question. He also claimed an alternative title by way of adverse possession. Defendant No. 1 also took the stand that the suit was not maintainable under S.28 of the Registration Act since the plaintiff practised fraud on registration inasmuch as the sale deed was registered at Cuttack by inclusion of some fictitious property which has no existence.
(3.) Defendant No. 47 in his written statement contends that the plaintiff has no locus standi to bring the suit and the 15 annas 6 pies interest in the land devolved on him, and he had let out the house to defendant No. 1. According to him, the devolution of interest of co-sharers is by virtue of a sale deed dated 12-8-1927 and the earlier suit filed by the co-sharers to set aside the sale was dismissed. He further pleaded that by the order of the Distict Judge he has sold the land in favour of defendant No. 1 on 9-8-1956 and, therefore, the suit is liable to be dismissed.;