KISHORE CHANDRA ADHIKARI AND ORS. Vs. VOOLLA RAMULU

JUDGEMENT

(1.) THE Plaintiffs have filed this second appeal against the reversing judgment of the lower appellate court in a suit for possession and for declaration of title in respect of survey No. 231 of village Uppalasingi with an area of 84 The Plaintiffs ' version is that the maternal grandfather of the Plaintiffs, Mohan Bakshi purchased the property in dispute in execution of a decree, the purchase being on 24 -4 -1939 and took delivery of possession on 13 -11 -1941. After the death of Mohan Bakshi, the Plaintiffs ' mother and on the death of the mother, the Plaintiffs are entitled to the property. The Plaintiffs allege, as the cause of action in the suit, dispossession in the year 1948 and assert that till then they were in possession, ever since after they had taken delivery of possession through Court in the year 1941 The main defence is on the basis of a claim of permanent rights of occupancy, The Trial Court found title with the Plaintiffs and he also found that the Plaintiffs were in possession till the year 1948 when they were dispossessed. In appeal by the Defendant the lower appellate Court has allowed the appeal on the ground that the civil Court has no jurisdiction as a plea has been taken in the written statement seeking protection under the Orissa Tenants Protection Act. He had however not considered fully the other points raised on the merits of the cases of the respective parties.

(2.) THE first written statement was filed by the original Defendant Voola Gayyanna who having died on 17 -2 -1955 during the pendency of these proceedings in the trial Court the present Respondent was made a party as legal representative of the deceased father. The position is manifest that the lower Appellate Court has acted illegally in having thrown off the case as being without jurisdiction of the Civil Court. A few facts and circumstances transpiring even from the pleadings are sufficient to convince me that the judgment of the Court below is bound to be set aside. The fact remains that in the year 1951 the suit land was described as the private lands of Voolla Gayyanna who is the Defendant in the original written statement. Gayyanna strongly relied upon the record of rights of the year 1951, on the basis of which he claimed the lands to be his private lands. It is important to note, that in the original written statement there was never any acknowledgment of the position of landlord and tenant between the parties. In the subsequent written statement filed by Voolla Ramulu, son of Gayanath, his main defence is that Gayanath was in cultivating possession of the suit lands with permanent rights of occupancy for more than 15 years. Indeed, a general plea has been taken in paragraph 17 of the written statement seeking protection under The Orissa Tenants Protection Act. But the plea, as it transpires from paragraph 17, appears to be absolutely vague and inconsistent with the substantial plea which is running through the entire written statement filed by the subsequent legal representative and also the original Defendant, Gayanath. It is manifest to my mind that this vague and general plea taken in paragraph 17 appears to be a mere contrivance to delay matters ousting the jurisdiction of the Civil Court. So it appears clear on a perusal of the pleadings that the substantial plea is not under the provisions of the Orissa Tenants Protection Act but a mere subterfuge and the court below ought to have seen though this position on a careful perusal of the parties.