LAXMIDHAR BEHERA Vs. UPENDRA BEHERA AND ORS.

JUDGEMENT

(1.) THE unsuccessful Plaintiff in the Courts below is the Appellant (sic). He brought the suit for declaration of his title to three decimals of land covered by portions of plot Nos. 411 and 415 appertaining to khata No. 56 of village Ana and for confirmation of his possession therein, or in the alternative, for recovery of possession.

(2.) THESE two plots of land admittedly belonged to one Paramanand Behera. After his death, his son Padmanabha Behera sold the two plots of land by two separate sale deeds Executed on 4 -4 -1948 and 16 -2 -1951 to the Plaintiff. The Plaintiff's case is that after he purchased the land, he excavated a tank on plot No. 415 and in a part of plot No. 411 and enclosed the tank by a fence. It is alleged by him that on 26 -5 -1961, the Defendants - who were sued as representing the villagers of Ana out the western side of the fence and made attempts to lay & road on the western side embankment of the tank thereby encroaching on the disputed two bits of land. The Plaintiff, therefore, instituted the suit on 28th of June, 1962 claiming the reliefs above mentioned and for an order of injunction restraining the Defendants from laying & road on the disputed property. The Defendants resisted the suit contending inter alia that a road has been existing on the disputed land since more than sixty years and that this road which connects the village Ana with the Bhadrak. Anandapur road on the north is being used by the villagers since then. The Plaintiffs predecessors -in -title were thus not in possession of the disputed bits of land since the last sixty years and the Plaintiff was never in possession thereof.

(3.) ON appeal by the Plaintiff, the learned Subordinate Judge agreed with the munsif that the road is in existence since 1921 and is being need by the villagers, and that consequently, the Plaintiff was out of possession of the same, with the result that the suit must be held to be bared by limitation under Article 142 of the Limitation Act, 1908. In regard to the question of customary right, he recorded the following finding: