The main legal point established is the confirmation of joint family properties and the voidance of the sale deed based on the lack of evidence for previous partition and the application of the principle of res judicata.

JUDGMENT

SANJU PANDA, J.-The Appellant, who is Defendant No.2 in the Court below, challenging the Judgment & decree dated 16.12.1982 & 23.12.1982 respectively passed by the Learned Sub-Judge, Athagarh in Title Suit No.2 of 1979 has filed this appeal.

2. The facts of the case are as follows Respondent Nos. 1, 2 & 3 as Plaintiffs filed a suit which was registered as Title Suit No.2 of 1979 with the following prayer:

(i) a decree for declaration of joint right, title & interest as well as that of Defendant No.1 in respect of the suit properties fully described in the Schedule of the plaint (ii) for a declaration that the Schedule properties mentioned in the plaint as joint family properties of the Plaintiffs & that of Defendant No.1.

(iii) for a declaration that Defendant No.3 is not the adopted son of Defendant No.1.

(iv) delivery of possession of 'A' & 'A/1' Schedule lands to the Plaintiffs & Defendant No.1 through Court.

(v) for grant of Rs. 3,000 as mesne profit as against Defendant No.2.

(vi) issue of a mandatory injunction to Defendant No.2 to unlock the residential building belonging to the Plaintiffs & restraining him from interfering with the peaceful possession & enjoyment thereof, cost of the litigation expenses & any other relief or reliefs to which they are entitled to under the law & equity. The genealogy of the parties is as follows:

Paramananda

Padmacharan Chakradhar

Bansidhar Dambarudhar Chandra Sekhar Adwaita

(D-1) (P-1) (P-2) (P-3)

3. The case of the Plaintiffs is that one Paramananda Pattnaik had two sons, namely, Padmacharan & Chakradhar. Padmacharan died leaving behind him his two sons, namely, Bansidhar (D-1) & Dambarudhar (P-1). Chakradhar had also two sons, namely, Chandrasekhar (P-2) & Adwaita (P-3).

4. The properties described in the schedule of the plaint are all ancestral properties belonging to the Plaintiffs & Bansidhar (D-1). Those properties were inherited from their grand father & all the parties are still living jointly & constitute a Hindu Mitakshara joint family as there was no severance of joint status between them at any point of time. Thus, there was no question of any previous partition by metes & bounds. Therefore, the further case is that about 50 years back, they shifted to Dhenkanal from Tigiria & residing there & Defendant No.1 being the eldest & Katra of the family. While Defendant No.1 was looking after the joint family properties, dissension & ill-feeling arose between the Plaintiffs & Defendant No.1 as a result of which Defendant No.1 has alienated the suit properties described in Schedule 'N' of the plaint by virtue of a registered sale deed in favour of Defendant No.2, Krushna Mohan Pattnaik on 26.8.1968. Defendant No.1 has also alienated Schedule 'B' property on 26.9.1968 by virtue of a registered sale deed in the name of his wife, Nisarnani. Nisamani specifically alienated the said property in favour of Defendant No 3 on 16.6.1979 on the strength of another registered sale deed. Defendant No.1 gifted the Schedule 'C' properties on 28.9.1979 in favour of Defendant No.3. The aforesaid sale deed & gift deed in favour of Defendant, Nos. 2 & 3 have not been acted upon or delivery of possession has not been made to the valid. Therefore, the same are not binding on the Plaintiffs as well as Defendant No.1.

5. The sale deed & gift deed in favour of Defendant No.3 were made due to undue influenced by the brother of Nisamani & .Defendant No.3 was never adopted as the son of Defendant No.1 at any point of time as stated in the plaint & the plea of adoption is a colourable pretence to grab the joint family properties. As Defendant Nos. 2 & 3 have filed the suit with the aforesaid reliefs.

6. Defendant No.1 filed his written statement & in his written statement so far as the genealogy is concerned he admitted the same & also admitted that the properties are ancestral properties. He has specifically stated in his written statement that he was aged about 75 years old in 19638-69 when