BIBHUTI BHUSAN MISRA Vs. RAGHABA JENA

JUDGEMENT

(1.) DEFENDANT No. 5 is the appellant before this Court against a reversing judgment. Plaintiff respondent filed the suit for declaration that they have stitiban status in respect of 'Ka' schedule land and that the defendants have no manner of right, title and interest therein.

(2.) CASE of the plaintiff respondents is that the suit property originally belonged to the family of late Kalu Charan Mishra and others. In the family partition of late Kalu Charan Mishra the suit properties fell to the share of Kalu Charan Mishra and he granted a permanent lease in respect of Ac. 1.60 decimals of land out of total properties which fell to his share appertaining to plot No. 108, Khata No. 13/'Ka' in mouza Krushna Chandrapur in favour of the ancestors of the plaintiffs. The ancestors of the plaintiffs remained possession of the same on the basis of such permanent lease and were paying rent to Kalu Charan Mishra. It is alleged in the plaint that Kalu Charan Mishra had agreed that the properties in dispute would be recorded in the names of ancestors of the plaintiffs as having stitiban status. Settlement operation started sometime in the year 1962 and father of the plaintiff respondents took steps for settlement of land in their favour in respect of Ac. 1.50 decimals of land but before final publication of ROR the father of the plaintiffs died. After final publication of the ROR the plaintiffs came to know on 25.3.81 that the land was not recorded in the name of the father of the plaintiff but same has been recorded in the names of father and grand father of defendants 1 to 4. The suit was therefore, filed for the relief claimed. Defendant No. 5 filed his written statement stating that his father had never granted permanent lease in favour of the ancestors of the plaintiffs in respect of Ac. 1.60 decimals of land appertaining to plot No. 108 as claimed and grand father and father of the plaintiffs never possessed the said land and were never paying rent to the father of the said defendants. Other plaint allegations were also denied. It is also specifically pleaded by the defendant No. 5 that his father was in physical possession of the suit land and after his death he was in possession of the same, His further case is that the suit land has been wrongly recorded in the settlement in the names of co sharers of late Kalu Charan Mishra. It is also stated in the written statement that the plaintiffs approached the defendant No. 5 to purchase the land and since the defendant did not accept the proposal the suit was filed to harass him.

(3.) APPEAL preferred by the plaintiffs before the learned Additional Subordinate Judge, Puri was allowed on the following findings :