MUKTESWAR KAK Vs. RADHAMOHAN SAHU

JUDGEMENT

(1.) Appellants in Title Appeal No. 24 of 1979 of the court of District Judge, Sundargarh who were defendant Nos. 2 and 3 in Title Suit No. 29 of 1977 of the Court of Subordinate Judge, Sundargarh, presently described as Civil Judge Senior Division) have preferred this Second Appeal as against the concurrent judgment and decree passed by the said two Courts decreeing the plaintiff's suit for declaration of title, recovery of possession and mesne profit. During the pendency of this appeal as the plaintiff/Respondent No. 1 died, therefore, his sons have been substituted as the legal heirs as per order dt. 24-9-1997 passed by this Court. Defendants 1, 4 and 5 are respectively Respondent Nos. 2 to 4.

(2.) Admittedly, the inter se relationship of the defendants is as follows :-

(3.) Plaintiff's case is that land of Khata No. 161 was the Chowkidari land (service tenure land) and plot No. 1359 is a part of that holding. Basu was the Chowkidar and to the said post the eldest branch succeeded and appointed as Chowkidar and that is how after the death of Madhusudan defendant No.1 became the Chowkidar. Land of holding No. 161 was exclusively possessed by that branch with their rights and interest. Land in Khata No. 91 was the joint family property and in amicable family partition by severance of status Plot No. 1346 of that holding inter alia was allotted to the share of the branch of Defendant Nos. 4 and 5 i.e. to their grandfather Samaru. The Defendants being 'Ganda' by Caste are members of Scheduled Caste. Plaintiff is a caste man. Therefore, any transaction for sale of landed properties according to the provision in S. 22 of the Orissa Land Reforms Act, 1960 (in short, 'the Act, 1960') was subject to grant of permission by the Revenue authorities. According to the plaintiff, being ignorant about such provision of law but on the basis of the genuine contract between Defendant Nos. 4 and 5 and the plaintiff, the latter purchased AC. 1.29 decimals of land from Defendant Nos. 4 and 5 vide six registered sale deeds during 8-12-1967 to 2-9-1968 and the subject-matter of sale on each occasion was part of either Plot No. 1346 or 1359. The details of such sale transactions are indicated in Schedule 'A' of the plaint. When the plaintiff and Defendant Nos. 4 and 5 became aware of the provision of law an application was made to the S. D. O., Sundargarh for grant of permission u/S. 22 of the Act, 1960 and after grant of such permission on 8-3-1972 Defendant Nos. 4 and 5 alienated the aforesaid AC. 1.29 decimals of land by executing and registering a sale deed. It is when Defendant Nos. 1 to 3 forcibly trespassed and possessed the case land that plaintiff instituted a complaint vide I. C.C. No. 22 of 1975 and as they were acquitted he instituted the suit with the prayer for declaration of right, title and interest over the suit land and for recovery of possession. In fact, the prayer for recovery of possession was though pleaded in paragraph 12 of the plaint but that was not incorporated in the prayer portion. However, an application for amendment being moved by the plaintiff in the first appellate Court that was allowed on 10-4-1981 and that prayer was also incorporated along with the claim of mesne profit and the consequential relief.