KASTURI MOHANTY Vs. AJAYA KUMAR PANI

JUDGEMENT

(1.) This Appeal under Sec. -100 of the Code of Civil Procedure (hereinafter called as 'the Code') has been filed in assailing the judgment and decree passed by the learned Additional District Judge, Nimapara in RFA No.193/41 of 2016/2015. By the same, learned First Appellate Court has confirmed the judgment and decree dtd. 18/4/2015 and 25/4/2015 respectively passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No. 122 of 2013. It is pertinent to state here that the husband of this present Appellant was the Defendant No. 1 before the Trial Court and having suffered from the judgment and decree passed therein; he had preferred the First Appeal. The said original Defendant No.1 having died after disposal of the First Appeal, his wife being the legal representative as the sole Appellant has presented the Second Appeal.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) The Plaintiff's suit is for permanent injunction against the Defendant No. 1 in restraining him from making any construction over the suit land and block passage and interfere in any manner in respect of the user of the suit land. One Bipini Bihari Pattnaik is said to be the owner of the land under Hal Plot No. 3388 corresponding to Sabik plot No. 2884. It is stated that from out of the total land of Ac.0.14 dec., its middle portion measuring Ac.0.04 decimal had been sold by him to the Plaintiff by the registered sale deed dated 14/10/9 on receipt of valuable consideration and he had delivered the possession of the same. The Plaintiff after purchase of the suit land on his move has converted its kisam to homestead by the order passed by the Competent Authority in OLR No. 72 of 2009. It is said that the land under Hal plot No. 3387 corresponding to Sabik plot No. 2891 is situated on the eastern side of the above purchase land of the Plaintiff and it belongs to the Govt. in the Irrigation Department (Defendant No. 3) and that is now the subject matter of the suit. The said land is belonging to the Defendant originally. It being acquired by the State with other properties for the purpose of construction of canal, canal road has been running over the suit land in the direction north-south touching the main road at Jayaguru Ashram on the northern and southern sides which ultimately join at Delta Chaka. As per the case of the Plaintiff, the suit land is used as road and it is the embankment of the canal. Since the acquisition of the land Defendant No. 1 has no right, title, interest and possession of the same. The Plaintiff claims to be using the said land as road as it runs which situates just in front of their land. On 20/6/13 since the Defendant No.1 advanced false claim over the suit land that it belongs to him and threatened to make construction over the same; the suit has been filed with the relief as prayed for.