TRILOCHAN BEHERA Vs. NAIKO BEHERA SUBHADRA

JUDGEMENT

(1.) Defendant No. 1 is the appellant against a reversing judgment in a suit for declaration of title, recovery of possession and realisation of mesne profits.

(2.) The suit land measures Ac. 2.72 appertaining to plot No.44, khata No.14 of mauza Sitarampur in the district of Koraput the boundary of which has been given in the plaint. Plaintiffs' case in a nut-shell is that on 20-11-1958 under a registered sale deed (Ext. 2) plaintiff No. 1 purchased the suit land along with some other lands from defendant No. 2 and also obtained delivery of possession through her husband (plaintiff No. 2). and ever since then plaintiffs are in possession till the land was attached in a proceeding under S.145 of the Code of Criminal Procedure. It is the further case that while describing the plot numbers in the sale deed plot Nos. 21 and 50 were wrongly mentioned whereas the boundary that was given was in respect of plot No. 44 and what was delivered to the plaintiffs was plot No. 44. The plaintiffs applied for mutation and defendant No. 1 set up a false claim of possession over plot No. 44 and also made a report before the police whereafter a proceeding under S.145, Code of Criminal Procedure, was initiated and the suit land was attached. Ultimately, the proceeding under S.145 of the Code of Criminal Procedure was terminated in favour of defendant. No.1 as per Ext. D and hence the plaintiffs filed the suit.

(3.) The case of defendant No. 1 is that what was sold by defendant No. 2 to plaintiff No. 1 was the land covered by plot Nos. 21, 50 and 43 under khata No. 2 and plot No. 38 of Khata No. 1 and at no point of time plot No. 44 had been sold to said plaintiff No. 1. It is also alleged that plaintiffs have never been in possession of plot No. 44. On the other hand, defendant No. 1 purchased plot No. 44 on 28-7-1962 measuring an area of Ac. 2.72 along with other plots in khata No. 14 under a registered sale deed (Ext. A) from defendant No. 2 and said defendant No. 2 delivered possession to defendant No. 1. Thus it is defendant No. 1 who continues to be in possession of the entire Ac. 10.99 including the suit plot of AC. 2.72 with effect from the execution of Ext. A. Further the said suit plot was mutated in favour of defendant No. 1 under Ext. Q and in the proceeding under S.145, Code of Criminal Procedure, defendant No. 1 was found to be in possession of the same. It is the further case of defendant No.1 that the suit land was a service tenure and had vested in the State prior to the alleged purchase by plaintiff No. 1 and, therefore, on the date defendant No. 2 sold the land to plaintiff No. 1 he had no saleable interest and thus plaintiff No. 1 did not acquire any right by virtue of the sale in her favour. Subsequently the land was settled with defendant No. 2 in 1962 and, therefore, defendant No. 1 got valid title by virtue of the sale in his favour under Ext. 4.