NARASINGHA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) IMPUGNED in this Appeal is the Judgment & decree of the first Appellate Court dated 18.7.1992 & 22.8.1991 respectively whereby the Judgment & decree passed by Munsif Jeypore (now Civil Judge (Junior Division Jeypore) dated 10.12.89 & 2.1.1990 receptivity were set aside & the suit of the Plaintiff (Appellant herein) was dismissed.

(2.) RESPONDENT No. 4/a had died during pendency of the appeal Plaintiff did not file any application to bring on record his legal representatives. It is submitted by Learned Counsel for Defendant No. 4 that the appeal abated on his death and therefore, the appeal must fail. His submissions are refuted by Learned Counsel for the Plaintiff. Defendant No. 4/a happened to be the legal, representative of deceased -Defendant No. 4 who died during pendency of the case and therefore, on the application of the Plaintiff, Defendant No. 4/a was arrayed as a legal representative. Undisputedly, on his death the appeal against him stands abated. However, the appeal, as such did not abate on his death as the deceased was non -contesting Defendant and was set ex pert. Besides, no relief had been claimed by Plaintiff against Defendant No. 4/a. He was arrayed as Defendant in the cause title being a proper party and therefore, abatement of appeal qua him does not disentitle the Plaintiff to continue with his appeal against Defendant Nos. 1 and 2.

(3.) DEFENDANT Nos. 1 and 2 have controverted the claim of the Plaintiff contending, inter alia, that Biswanath Bali and Kalia Challan or their ancestors never possessed the suit land either prior to the abolition of Jeypore Zamindary or subsequent thereto. The suit property was part and parcel of Jeypore Estate which vested in the State Government in 1952 by virtue of the Act, 1952, free from all encumbrances and therefore, the State Government has absolute right, title and interest in it. The Plaintiff encroached the suit land in the year 1962 and when this was detected, Encroachment Case Nos. 72 of 1970 and 41 to 1970 were started against him. The sale deeds, it any cannot confer any title on the Plaintiff over the suit property as the same belonged to the State Government. It is further averred that there was never any house over the suit land when the survey and settlement operation in Jeypore town took place in or about 1962. However, Plaintiff encroached upon, the suit land and constructed a Kacha house to claim a title in the suit Property. Plaintiff was asked to vacate the possession of the suit land, but he failed and therefore, vacation Order Dated 12.8.1977 was issued by the Tahasildar, Jeypore, The further case of Defendants is that since Plaintiff has no right title and interest over, the suit, property he is not entitled to declaration of the title over the property described in Schedule 'A' and 'B" of the plaint.