PRAFUL KUMAR DHAL Vs. KALI PANDA AND ANR.

JUDGEMENT

(1.) THIS is a Plaintiff 's second appeal against the reversing judgment of the lower -appellate Court arising out of a suit brought by the Plaintiff for declaration of title and for recovery of possession of eight cents of land which is to the eastern portion of plot No. 534, the total area of which is 21 cents. This disputed land was us d as a residential house of the Defendants. The disputed land is situate within the ambit of touzi No. 566 and the Plaintiff is the purchaser in revenue sale for arrears of rent for sixteen annas of the aforesaid touzi in March 1944. He took delivery of possession on 5th October 1944. This being used as residential house of the Defendants, according to the Plaintiff 's version, it was covenanted that the Defendants would make arrangement for vacating the house within one year and the Defendants not having vacated the house, the present suit has been brought for declaration of title and for recovery of possession.

(2.) THE defence, in short, was that this is a Chandand holding of the ancestors of the Defendants and further that as this was the residential house of the Defendants this was not really transferred on the basis of the sale held under the Revenue Sale Act.

(3.) MR . Swain, appearing on behalf of the Plaintiff Appellant, ha taken up two points: (i) that the Plaintiff under the provisions of Section 6 of the Orissa Estates Abolition Act must be deemed to be a tenant under the Government after the estate has vested and as such he has got the right to pursue the suit to evict the Defendants who are trespassers; and (ii) that on the basis of the provisions of Order 22, Rule 10, Code of Civil Procedure the Plaintiff, when he had the right to sue at the time when the suit was instituted, will be entitled to pursue the lis until it is finally concluded. On the first point Mr. Swain has relied upon two decisions of the Patna High Court reported in Mahant Sukhdeo Das v. Kashi Prasad and Mahabir v. Ram Narain. It would be relevant to quote the relevant passages from Section 6, Sub -section (1):