JUDGMENT :

A.K. RATH, J.

The defendants 1 and 2 are the appellants against a confirming judgment.

2. Plaintiff-respondent no.1 instituted the suit for permanent injunction. The case of the plaintiff is that Chemi Behera @ Dehury was the daughter of Danei Pandey. His wife is Fula. Danei had another brother, namely, Kanhei. There was a partition between Danei and Kanhei. After death of Danei, his widow Fula succeeded to the property. Fula was in possession of the property. The defendants created disturbance in her possession. Fula filed T.S.No.104 of 1951 in the court of the learned Munsif, Bargarh. The suit was decreed. Thereafter Fula gifted away her entire property to her daughter-Chemi by means of a registered gift deed dated 31.5.57. The defendants again created disturbance in the possession of Chemi. Accordingly, Chemi filed T.S. No.2 of 1964 in the court of the learned Munsif, Bargarh against the defendants. The suit was decreed. The suit land had been recorded in the name of Chemi in the consolidation operation. To press her legal necessity, she sold the suit land to the plaintiff on 11.12.85 by means of a registered sale deed for a consideration of Rs.2400/-. Possession of the suit land was delivered to him. He is in possession of the suit land. Since the defendants created disturbance, he filed the suit seeking the relief mentioned supra.

3. The defendants filed a joint written statement denying the assertions made in the plaint. The specific case of the defendants that since the time of Kanhei they are in possession of the suit land for more than the statutory period and as such perfected title over the suit land. Neither Chemi nor Fula evicted them from the suit land. The alleged gift deed and sale deed are mere paper transaction. In the M.S. R.O.R. the suit land has been recorded in their names. The order of the Consolidation Officer is without any jurisdiction. The plaintiff is not in possession of the suit land. They claim that they are the heirs of Chemi and entitled to possess the suit property. The sale deed executed in the name of the plaintiff is an outcome of fraud. No consideration was paid. Possession of the land was not delivered to the plaintiff.

4. On the inter se pleadings of the parties, the learned trial court framed eleven issues. The parties led evidence. The learned trial court came to hold that the decision in the earlier case operates as res judicata in T.S.2/64. Possession of the land has been duly delivered to the plaintiff. It further held that the defendants are not in possession of the suit land. They have not perfected title by way of adverse possession. Held so, it decreed the suit. The unsuccessful defendants filed T.A.No.1 of 1989 before the learned Subordinate Judge, Bargarh, which was eventually dismissed.

5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.1(a) and 3(a) of the appeal memo. The same are:

“1 (a) Whether the findings of the Courts below with regard to permission for sale obtained by Chemi are sustainable in the eye of law, when the validity of the said permission is under challenge and sub-judice before the competent court ?

3. (a) Whether the finding of the lower appellate Court that the defendants have not berthed a single word challenging the identity of the suit land is sustainable when the defendants in para-1 of their additional written statement specifically challenged the identity of the suit land and it affects the final decisions of the subject matter in dispute ?”

6. Mr. Sukumar Ghosh, learned Advocate for the appellants submits that the specific case of the defendants is that permission obtained by Chemi to sale the disputed land to the plaintiff is an outcome of fraud. The sale deed dated 11.12.85 is not valid. The plaintiff cannot derive any title. He further submits that the permission granted by the Revenue Officer was challenged before the A.D.M., Sambalpur in O.L.R. Appeal No.15 of 1986. By order dated 30.11.87, the ap