CHANDRAKANTA PANI Vs. KAMALALOCHAN PANI

JUDGEMENT

(1.) THIS appeal is by the plaintiff from the reversing decision dated 5-7-1968 of Sri b. K. Misra, Additional Subordinate Judge, Cuttack, passed in T. A. No. 68 of 1965.

(2.) THE plaintiff filed the suit for declaration of title to 0. 200 decimals of land (Kha schedule), confirmation of possession or in the alternative recovery of possession, permanent injunction and for recovery of damages of Rs. 20. The suit land, measuring 0. 200 is set out in Kha schedule to the plaint. Kha schedule is the total extent of land in Khata No. 29. Kha schedule is a part of Ka schedule. Entire Khata no. 29 was Bahel land in respect of which defendant No. 9, Saraswati Dibya was the recorded proprietor. Defendant No. 9 executed and registered a lease deed in favour of Ram Mallik Bari Mallik (defendant No. 7) and Das Mallik (defendant No. 8) in respect of the suit properties (Schedule Kha) on 5-6-1949 (Exhibit 5), By mutual arrangement amongst the lessees suit properties were allotted to the exclusive share of Ram Mal-lik. In 1954-55, a Certificate Case No. 458 of 1954-55 was instituted by the landlord for arrears of road cess in respect of the entire khata (Kha ). While that case was pending Ram Mallik died and his widow (defendant No. 4) executed and registered a sale deed in favour of Mala Dei (defendant No. 5) and Suria Dei (defendant No. 6) on 14-2-1955. The registered sale deed is Exhibit 4. Defendants Nos. 7 and 8 executed a deed of relinquishment in favour of the aforesaid purchasers (defendants Nos. 5 and 6) on 25-3-1959, which is Exhibit 2. Defendants Nos. 5 and 6, subsequently on 27-4-1959, sold the suit properties to the p laintiff under a registered sale deed, Exhibit 3. Thereafter defendants Nos. 1 to 3 interfered with the possession of the plaintiff over the suit land by wrongfully cutting a tree standing thereon and thereby compelled the latter to file the present suit.

(3.) THE contesting defendants deny the plaintiff's case of lease granted by defendant No. 9 to Ram Mallik, defendants Nos. 7 and 8 as alleged in the plaint. Their case is that defendant No. 1 purchased entire Khata No. 29 of 1. 50 decimals (Schedule Ka in Court auction when it was put to sale in Certificate Case No, 458 of 1954-55 for realisation of road cess, on 25-1-1955 (Exhibit C), and took delivery of possession on 12-7-1956. He then sold 0. 70 decimals out of plot No. 337 and 0. 150 out of plot No. 336 to defendant No. 3 by registered sale deed dated 25-1-1961, They also denied the allegation of cutting of the tree standing on the suit land.