KRUPASINDHU MISRA Vs. GOBINDA CHANDRA MISRA

JUDGEMENT

(1.) Legal representatives of the original plaintiff have brought this appeal against the reversing judgement and decree of the learned Additional District Judge of Cuttack in a suit for title, possession and recovery of damages as also mesne profits. Plaintiff claimed that he and his co-sharer (the second defendant) purchased plot No. 2441 with an area of 60 decimals along with certain other properties in the year 1940 and ever since then they have been in possession as owners. In a partition between the co-sharers made subsequently the disputed property came to the plaintiff as exclusive owner. On a part of this plot he raised a house and continued to enjoy the vacant site as a threshing-floor. Plaintiff being an advocate's clerk usually stayed away from home. Defendant No. 1 happens to be the owner of plot No. 2442 adjoining the disputed property on the south. The property covered by plot No. 2441 vested in the State under the provisions of the Orissa Estates Abolition Act, 1951, and on an appropriate application under Chapter-II thereof, the same has been settled with the plaintiff and defendants 2 and 3. Defendant No. 1 constructed a boundary wall sometime in 1963 encroaching upon a part of plaintiff's land covered by 'Ka' schedule of the plaint. He also disturbed plaintiff's enjoyment of the property in the 'Kha' schedule. This led to the institution of the suit.

(2.) Defendant No. 1 alone entered contest and maintained that the disputed property was a part of his plot 2442; he had raised his house along with a compound wall in 1948 and beyond the compound wall of his lay a passage with five links' width on which defendant carried paddy sheaves and straw to his threshing-floor from his lands. Even if the disputed land had once formed part of plaintiff's plot, plaintiff has lost title to it on account of defendant's adverse possession for more than the statutory period. In an additional written statement, he disputed the settlement under the provisions of the Orissa Estates Abolition Act on the score that there was no compliance of the procedure laid down under S.8-A of the Act and, therefore, plaintiff was not entitled to have support for his title from such settlement.

(3.) The trial court decreed the suit holding that plaintiff had title to the property and directed removal of the encroachment on the 'Ka' schedule property. It also decreed recovery of possession of the 'Kha' schedule land. With regard to the settlement by the Estate Abolition Collector, the trial court observed :