BRAJABANDHU MOHAPATRA Vs. GOPAL CHANDRA MOHAPATRA

JUDGEMENT

(1.) THIS is a defendant's second appeal arising from a suit for declaration that the disputed land of 10 decimals is a part of the public passage comprised in old settlement plot No. 1069 corresponding to C. S. Plot No. 1090 and for permanent injunction restraining the defendants from preventing user of the same as a part of the public passage. The suit was dismissed by the trial court but was decreed by the lower appellate court. Hence this Second Appeal.

(2.) THE map appended to the plaint shows that to the adjoining east of Plot No. 1090 is the disputed 10 decimals of land ear-marked as 's' which again adjoins to its further east plaintiff's plot No. 968. The disputed area demarcated as 's' and western part of plot No. 968 adjoins on their south plot No. 964 of the defendants, and on their north plaintiff's homestead plots 1144 and 1146/1691. Defendant's plot No. 964 is recorded as occupancy raiyati-holding. The case of the plaintiff is that he was passing over the disputed land 's' from his homestead to his agricultural plot No. 968. Formerly, before the disputed area was amalgamated by the defendants in their own plot No: 964, the public passage extended upto plaintiff's agricultural plot No. 968. The dispute arose when the settlement map was prepared showing the disputed land marked 's' which, it is alleged was brought about by the defendant's manipulation, and the defendants claimed it as a portion of the Bari on 8-8-63 and thereby prevented its user by the Plaintiff and thus obstructed his right of way.

(3.) THE defendants claimed the suit land as a part of their plot No. 964 since time immemorial. They deny the plaint allegations that they have manipulated in getting the suit-land recorded in the latest settlement map as a part of their plot. They have adopted a legal defence that the suit is hit by Section 91, C. P. C.