NIRMAL CHARAN KUND Vs. TRILOKYANATH KUND

JUDGEMENT

(1.) By the same, the Appeal under sec. 96 of the Code filed by the unsuccessful Plaintiff before the Trial Court as the Appellant therein, whose legal representatives pursued that the Appeal present Respondents 1 to 4, has been allowed and the judgment and decree dtd. 18/1/2007 and 6/2/2007 respectively passed by the learned Civil Judge, Junior Division, Kendrapara in Civil Suit No.68 of 2004 have been set aside and the suit has been decreed restraining these Appellants (Defendants) or their agent or servants from interfering upon the suit land and making construction by encroaching upon the said land having due regard to the green demarcating fence between the suit plots and the plots of the Appellants (Defendants).

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

(3.) The Plaintiff's case is that suit plots stated in the schedule of the plaint are his ancestral properties and those are under plot no.316, 317 and 2225. Those lands are said to be the homestead lands standing recorded in Khata No.691. It is stated that the Plaintiff is in exclusive possession of the same with two Chakudna trees and two Palm trees standing to the western side. It is stated that the land under consolidation plot nos.2226 and 2227 are adjacent to his lands and those belong to the Defendants and were lying vacant. In the year 2003, the Defendants attempted to encroach over the suit land for which a local survey knowing Amin was called to demarcate the boundary lines of the suit land of the Plaintiff and Defendants. The private Amin identified the boundary of the suit land by stating that those trees are within the boundary of the suit land of the Plaintiff and then the Defendants had admitted the said fact. But then again after demarcation, the Defendants again claimed those Palm trees as their own and threatened to cut the same for which FIR had been lodged at the Police Out Post. The matter was then settled that the suit land has to be demarcated by Tahasil Amin. It is stated that as the Defendants did not take any step for demarcation, the Plaintiff filed Demarcation Case No.79 of 2003 when the Defendants created problems in all other plots. The measurement could not be made. On 18/11/2003, the Defendants further attempted to cut the trees. So, the matter had been referred to the Sarpanch. The Defendants then agreed for demarcation of the suit plots but it was of no avail when finally on 24/5/2006, the Defendants were found to have collected bricks and other materials for putting up construction over the suit land. So the suit has come to be filed.