CHANDRA SEKHAR SAHOO Vs. CHANDRASEKHAR DAS

JUDGEMENT

(1.) DEFENDANTS 1 and 3 to 5 are the appellants against the decision of a learned Single Judge of this Court.

(2.) PLAINTIFF respondents 1 and 2 had filed the suit for declaration of right and for confirmation of possession and permanent injunction. The disputed property has been described in the plaint in Schedule A 'B' Schedule is a part of Schedule Ac. Lot No. 1 of Schedule A consists of two plots Plot No. 2023 with area of Ac. 4.64 decimals and Plot No. 2023/4525 with area of A. 1.12 decimals both plots being in Khata No. 15. Lot No. 2 of Schedule A consists of plot No. 2023/4567 with area of Ac. 0.38 decimals in Khata No. 326. Schedule B has been described as Ac. 3.84 decimals out of Ac. 4.64 decimals in Plot No. 2023. It is not disputed that the property described in Lot No. 1 of Schedule A was the Bramhottar Niskar land and in Lot No. 2 was Pahi land which originally belonged to one Nijakantha Sadasya.

(3.) DEFENDANTS 1, 3, 4 and 5 filed a joint written statement. Defendant No. 2 filed a separate written statement. Defendants 1, 3. 4 and 5 in their joint written statement claimed that the plaintiffs had filed Title Suit No. 21 of 1962 for recovery of possession and the said suit having been dismissed, the present suit is barred by principles of res judicata. The alleged adoption of Madhu was denied. According to their case, Lot No. 1 was recorded in the names of Champa (widow of Madhu), Lokanath and Natabar in the year 1924 25 each having one third share in the property. In Mutation Case No. 822 of 1945 46, Lot No. 1 of Schedule A was recorded in the name of Champa having one third share and Lokanath having two third share and similarly Lot No. 2 was recorded in the names of Champa and Lokanath in Mutation Case No. 823 of 1945 46. In respect of Lot No. 1 Correction Slip No. 393 was issued indicating that Champa had Ac. 1.92 decimals and Lokanath had Ac. 3.84 decimals, and Correction Slip No. 394 was issued in respect of Lot No. 2 indicating that Champa had Ac. 0.12 decimals and Lokanath had Ac. 0.26 decimals. In Mutation Case Nos. 783 and 780 of 1945 46 and corresponding Correction Slip Nos. 395 and 396, Ac. 0.96 decimals of land each from out of Ac. 1.92 decimals recorded in the name of Champa was mutated in the name of Fakira (son of Subarna and grandson of Champa) and Buli (daughter of Champa) and separate Plot Nos. 2023/1 and 2023/2 were given and the balance portion of Lot No. 1 was corrected in the name of Mohani Dibya, widow of Lokanath, as per Mutation Case No. 526 of 1947 48 and Correction Slip No. 436. Balance portion of plot No. 2023 with area of Ac. 2.72 decimals was thus recorded in the name of Mohani Dibya and similarly plot No. 2023/4525 with area of Ac. 1.12 decimals was recorded in her name. It was further stated that though plaintiff No. 1 had purchased land from Mohani, neither he, nor his vendor was in possession of the land and the Patta in the Vesting Case had been obtained illegally. The validity of settlement in favour of plaintiff No. 2 in respect of Ac. 1.92 decimals was challenged on similar ground. As Lokanath Mohapatra had left behind three daughters, the property could not have been recorded in the name of plaintiff No. 2 and all the three daughters should have been recorded. Buli sold Ac. 0.96 decimals by separate sale deeds in favour of defendants 1, 4, 5 and father of defendant No. 3. Similarly, Fakira sold Ac. 0.96 decimals of land in favour of defendant No. 1 and father of defendant No. 3 by separate sale deeds. While denying other allegations in the plaint, it was claimed that Mahadeb, Keshab and Dama, the predecessors in interest of defendants were the recorded Sikimi tenants in Sikimi Khata No. 402 corresponding to Khata No. 15 and Mahadeb was the Sikimi tenant in respect of Sikimi Khata No. 411 in respect of Khata No. 326. The allegation regarding eviction of Sikimi tenants in Misc. Case No. 816 of 1 939 40 was denied and it was claimed that such order, if any, was illegal as Sikimi tenants had acquired the status of occupancy. It was further contended that such order, if any, had not been acted upon and the tenants had not been evicted. In the alternative, it was claimed that defendants 1, 3, 4 and 5 had perfected their title by adverse possession and their possession had been rightly upheld in the proceeding under Section 145, Cr.P.C. Defendants 1,4,5 and father of defendant No. 3 had also purchased the right of the Malik royats in respect of Ac. 2.30 decimals of land in plot No. 2023. On the aforesaid pleas, the defendants sought for dismissal of the suit.