BAURI Vs. NATABAR SWAIN

JUDGEMENT

(1.) This appeal arises out of Title Suit No. 219 of 1970 filed by the plaintiff in the Court of the Second Munsif, Cuttack, The prayer of the plaintiff was that defendants 1, 2 and 3 should be permanently injuncted from interfering with the possession of the plaintiff and pro forma defendants 4 and 5 over the disputed plot No. 1408 and the five mango trees standing thereon.

(2.) The plaintiff's case is that the disputed plot No. 1408 appertaining to Khata No. 167 of village Kuliagaon stands recorded in the names of Shyam Swain, Dhaneswar Swain and the plaintiff. Shyam Swain has gifted his 1/3rd share in the suit plot in favour of pro forma defendant No. 4 by a registered deed of gift in the year 1964. Dhaneswar Swain died leaving behind him his widow, pro forma defendant No. 5 as his only heir. It is claimed that the plaintiff and pro forma defendants 4 and 5 are the full owners in possession of the disputed plot No. 1408. There were seven old mango trees standing on the disputed plot and this has been recorded in the C. S. Khatian. Two mango trees were subsequently cut and by the time of the suit five old mango trees stood on the western side of plot No. 1408 on its southern portion. It is alleged that defendants 1, 2 and 3 who are owners of the contiguous plot No. 1407 to the immediate west of the disputed plot No. 1408 were laying a false claim to the five mango trees on plot No. 1408 in connivance with some other people. According to the plaintiff, the cause of action arose on 29-10-1970 when defendants 1, 2 and 3 threatened to cut the mango trees on plot No. 1408 and interfered with his possession.

(3.) In their written statements defendants Nos. 1 to 3 admit that plot No. 1408 belongs to the plaintiff and defendants 4 and 5. According to these defendants, seven mango trees stood on plot No. 1408 at the time of settlement operations in 1930, but all those trees were cut long long ago either by the plaintiff and defendants 4 and 5 or their predecessors. Thereafter there were no mango trees left on plot No. 1408. These defendants admit that plot No. 1407 belonging to them is contiguous to plot No. 1408 and stands to its west, but they deny that they are laying any false claim, to the five mango trees standing on plot No. 1408. They have also denied that they have removed any mango trees from plot No. 1407 as alleged by the plaintiff. These defendants have said that they have never threatened the plaintiff and defendants 4 and 5 or interfered with their possession over plot No, 1408. These defendants have further stated that at the time of the suit five mango trees stood on plot No. 1407 and these trees belong exclusively to defendants 1, 2 and 3 with a gap of about 5 to 10 links between plots Nos. 1407 and 1408, These defendants have put in an alternative plea of adverse possession in case it was found that any of the mango trees were situated on plot No. 1408.