SUKANANDE CATHOLIC CHURCH Vs. ASPATI PRADHAN

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants in the present appeal against a reversing judgment of the learned District Judge in suit for declaration of title and recovery of possession.

(2.) The brief facts of the case are that the plaintiff filed a suit for declaration of right, title and interest and for permanent injunction against defendants 1 and 2 . The alternative prayer was for restoration of possession in case the plaintiff and defendant Nos. 3 to 11 are found to have been dis-possessed. It was the case of the plaintiff that the suit land bearing plot Nos. 616,620,621,622 and 637 in Khata No. 14 of Kakamaha Mouza under G. Udayagiri Tahsil consisting of 2.281 hectres which is locally called 'PADRIPADA' is the ancestral property of the plaintiff and defendant Nos.3 to 11. The lands had been recorded in the name of defendant Nos. 3 to 10. The plaintiff and defendant No. 11 are sons of defendant Nos 3. The plaintiff and defendant Nos. 3 to 11 are in possession and enjoyment of the suit land by raising various agricultural produces on a portion of the suit land by enjoying fruits of the trees standing on the suit land. On 15-4-1981 the defendant No. 1 through defendant No. 2 forcibly entered upon the suit land; cut down the trees and started raising a compound wall around the suit land and when the plaintiff protested, defendent No. 2 threatened him to assault and gave out that he has purchased the suit land without disclosing the name of the vendor and the date of purchase. In spite of all efforts, the plaintiff could not trace out as to when and how the defendants 1and 2 acquired any right over the suit properties and hence a suit for declaration of right, title and interest in respect of the suit land in favour of the plaintiff and defendant Nos. 3 to 11 and for permanent injunction restraining defendant Nos. 1 and 2 from entering upon the suit land and for recovery of possession.

(3.) Defendant Nos. 1 and 2, the present appellants in their written statement while denying the claim of the plaintiff pleaded that suit land was never the ancestral property of the plaintiff and defendant Nos. 3 to 11 nor they were ever in possession. The suit property are the ancestral property of one Biswanath Pradhan and other Damenaju villagers being their Kotha lands and they were all along in possession and peaceful enjoyment of the suit land from the time of their ancestors. Some of the defendants initiated a proceeding under Sec. 145 of the Code of Criminal Procedure against one Father who was previously in charge of defendant No. 1 for which the people of Demenaju, Sudam Pradhan and others filed a suit before the Addl. Munsif, G. Udayagiri claiming the suit land to be their Kotha lands and got a decree in their favour and took delivery of possession in Execution proceeding No. 2 of 1978 and thereafter, the suit land was sold to one Cyril Pradhan on 5-2-1979 by virtue of a registered sale deed. Cyril Pradhan after taking delivery of possession from Damenaju villagers raised a compound wall around the suit land and defendant No. 2 being the representative of Cyril Pradhan is now in possession of the same since 1979. The plaintiff and defendant Nos. 3 to 11 were never in possession of the suit land and had raised no crops at any point of time. Defendant No. 2 never forcibly entered upon the suit land on 15-4-1981 as alledged cut down the trees and started construction of the compound wall. It was further pleaded that since in the previous civil suit between the Damenaju villagers and defendant Nos. 3 to 10, the plaintiff or his brother, defendant No. 11 never claimed any interest, the present suit will be barred by the principles of resjudicata. Besides the other claims, defendant Nos. 1 and 2 had further submitted that the suit is not maintainable since it is bad for mis-joinder and non-joinder of party inasmuch as the property was not valued property and as such, the plaintiff is not entitled to any relief. The suit land has been described as padar land, locally called 'PADRIPADA' measuring 2.281 hectres bearing plot Nos. 620,621,622,637,616 and 619 situated in mouza Kakanaha under G. Udayagiri Tahasil bounded by G. Udayagiri Tilabari Road from East, podar land of Parusram Pradhan and Biswanath Pradhan from the West, Govt. well and Bilabada village from the North and Land of Cyril Pradhan purchased from Kasipatra Pradhan and Dasarath Pradhan from the south.