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Judgment
M.M. Das, J.—This appeal has been admitted on the substantial question of law as to whether under Ext. 5, the share of Shyamasundar
was sold or interest of Shyamasundar in the joint family property was put to auction by the Court. The Plaintiff-Respondents filed a suit, being T.S.
No. 124 of 1982, claiming that late Harihar Mohanty, the deceased father of the Plaintiff Nos. 1 to 5 and the husband of Plaintiff No. 6 owned the
suit land and was in possession over the same and other adjoining land in the aforesaid khata till his death in the year 1973 and after his death, the
Plaintiffs have inherited the said property with house standing thereon as owners and have been possessing it. The Defendant No. 1 was engaged
by late Harihar Mohanty as a servant, who was allowed to stay over a small thatched house constructed by late Harihar Mohanty and during
current settlement operation, the Defendant No. 2 in collusion with the Defendant No. 1 has put-forth a false claim over the Schedule ''A'' land on
the ground that they are possessing the same as the father of Defendant No. 1 purchased the same from Abhiram Dash on payment of Rs. 10.
Asserting that the Defendants have no right, title and interest over the disputed property, the Plaintiffs filed the suit for declaration that they are the
rightful owners in respect of the Schedule ''A'' land and delivery of possession of the suit property, if they are found to have been dispossessed.
The Defendants filed their written statements, inter alia, stating that originally the suit land along with other property belonged to one Abhiram Dash
who died leaving behind three sons, namely, Shyamasundar Das, Ramachandra Das and Harish Chandra Das. Under Ext. C (an agreement to sell)
Abhiram Das agreed to sell the disputed property to the Defendant No. 2''s father and delivered possession of the property to them. However, no
sale deed has been executed in favour of either Defendant No. 2''s father or the Defendant No. 2 but they are continuing in possession over the
disputed property and as such, they have perfected their title by way of adverse possession. The Plaintiffs pleaded that the three sons of Abhiram
Das have partitioned their property by metes and bounds and the suit property including other lands were allotted to the share of Shyamasundar
Das, who incurred some loan from one Ambica Charan Das but he could not repay the said loan. Thereafter, Ambica Charan Das filed a money
suit against Shyamasundar Das and obtained a decree and in the execution proceeding being Execution Case No. 87 of 1951., the suit land and
other lands of the Judgment debtor-Shyamasundar Das were put to auction in the Court. The decree holder Ambica Charan Das purchased those
lands which were put to Court auction (Ext. 4, the order of holding Court auction) and such sell was confirmed under Ext. 5 and possession of the
suit land and other lands were delivered under Ext. 6. The Defendants pleaded that no specific property was sold in the execution proceeding but
only the share of Shyamasundar Das was put to auction and the decree holder- Ambica Charan Das purchased the same as per Exts. 5, and 6.
The Trial Court on the pleadings of the respective parties framed nine issues and came to the finding that Ext. C which has been admitted into
evidence being a document of 30 years old, shows that possession of the Defendants under Ext. C was permissive as Nayabadi Settlement took
place in the year, 1943, the name of the father of Defendant No. 2 was not recorded in respect of the suit land and thus, Ext. C has not been acted
upon. The plea of oral sale, taken by Defendant No. 2 was negatived by the Trial Court in view of the fact that no such evidence was adduced by
the Defendants. The stand taken by the Defendants with regard to the provision of Section 53A of the Transfer, of Property Act was not accepted
by the Trial Court. So far as the plea of adverse possession is concerned, the Trial Court held that the Defendants have failed to prove their plea of
adverse possession. Rather the Trial Court found that in view of Exts. 5, 6, 7 and 12, title and possession of the Plaintiffs has been proved. With
the above findings, the suit was decreed.
The Defendants preferred an appeal against the Judgment and decree passed by the Trial Court. The lower Appellate Court discussing the
evidence on thread bare and assigning reasons there for has come to the finding that the Learned Subordinate Judge came to the right conclusion in
decreeing the suit of the Plaintiffs. It is further found that the sale certificate (Ext. 5) discloses that the lands to an extent of 40 manas and some odd
which fell to the share of the Judgment debtor, Shyamasundar, were sold in auction for Rs. 4010 in favour of the decree-holder Ambika Charan
Das. The Learned lower Appellate Court has verified the Amin''s Badar Report that the lands allotted to the share of Shyamasundar had been sold
-and possession of the lands covered under the Sale Certificate (Ext. 5) was delivered to the decree-holder/auction purchaser as seen from Ext. 6.
The lower Appellate Court took note of the statement of P.W. 5, who is one of the brother''s son of Shyamasundar, that all the lands belonging to
three brothers, namely, Shyamasundar, Ram Chandra and Harish Chandra, were partitioned and in the said partition, his father got 40 man as of
land. It further speaks that the land which fell to the share of Shyamasundar had been sold. On consideration of the evidence as stated above, the
lower Appellate Court found, as a matter of fact, that Shyamasundar was in exclusive possession over the disputed property, which was put to
public auction and the decree holder Ambika Charan Das purchased the same and obtained the Safe Certificate, Ext. 5, the possession of which
has been delivered to him by the Court under Ext. 6. Thus being the owner in possession of the suit land and other lands, the decree holder/auction
purchaser transferred the land to an extent of 21 manas and some odd including the suit land, under registered sale deed, Ext. 2 to Chintamani
Das, who subsequently, out of those lands, transferred 12 manas and some odd including the suit land to Harihar Mohanty, who is the predecessor
in interest of the Plaintiff, under the registered sale deed in 1959. From Ext. 12, it is revealed that after purchase, Harihar got his lands mutated in
his name in Mutation Case No. 2332 of 1959-60 and subsequently, the record of rights under Ext. 7 was also prepared in his name. The rent
receipts under Ext. 8 series disclose that rent is always being paid by the Plaintiffs in the name of their predecessor in interest.
With regard to the substantial question of law framed during admission of the second appeal, I have examined Ext. 5 from the L.C.R. which
shows that the suit property was sold in Court auction to the decree holder Ambika Charan Das mentioning specific extent of land and plot
numbers, though in Sale Certificate it has been mentioned that the lands sold are to the share of Shyamasundar.
In view of the finding of fact that there was a partition between three brothers and the property which was sold in Court auction fell to the share
of Shyamasundar, I do not find any reason to interfere with the said finding of fact in the second appeal.
Mr. Pal, Learned Counsel for the Appellants submits that even Ext. C is an agreement for sale as possession was delivered basing on the. said
Ext. C to the Defendants, if Ext. C is found to be invalid and inoperative, possession of the Defendants should be construed to be adverse and they
have perfected their title by way of adverse possession from the date of execution of Ext. C and delivery of possession, which has not been dealt
with by the Courts below. He relies on the decision in the case of Markanda Mahapatra -v- Varada Kameswar Rao Naidu and others, AIR (36)
1949 Patna 197 in support of the above contention and submits that it is well settled in law that a person coming into possession basing on a
document which either may be an agreement for sale or any other document purporting to have transferred title and possession, in the event such
document is found to be unsustainable in law or void, the possession of the person over the land covered under such document will be treated to
be adverse possession from the date of coming into possession over the land pursuant to. such document declared to be void. There is ho quarrel
with this proposition of law. Gut, however, in the present case, the Courts below have, as a matter of fact, found that the Defendants were never in
possession over the disputed property and the Plaintiffs are in possession from the time of their predecessors in interest. In view of such conclusive
finding of fact, the question of dealing with the above proposition canvassed by Mr. Pal, Learned Counsel for the Appellants, does not arise in this
second appeal. The second appeal is accordingly dismissed being devoid of merit, but in the circumstances, parties shall bear their respective cost
in respect of the appeal.