RAJKISHORE DAS Vs. GHANASHYAM NAYAK

JUDGEMENT

(1.) Defendants are the appellants against the reversing judgment of the learned Additional District Judge, Bhubaneswar. The plaintiff-respondent had filed O. S. No. 22 of 1974 (I) in the Court of the Musif, Bhubaneswar praying for restoration of title, confirmation of possession and permanent injunction in respect of A. O. 10 decimals of land appertaining to plot No. 2226 under Holding No. 158 (Hal plot No. 4772 Holding No. 499) of village Rajasa, P. S. Balipatna.

(2.) The plaintiff's case is that the suit lands originally belonged to Mahant Harekrushna Das, father of defendant No. 1, who had Lakharaj Bahel proprietary interest, but was not in a position to make any use of the same. In the record of rights finally published in 1928 the suit lands were recorded in the name of Mahant Jayaram Das. The plaintiff's father was well-known to Mahant Harekrushna Das and was rendering various services to him. As such at his request in the year 1945 Mahant Harekrushna Das inducted the father of the plaintiff as a raiyat to hold the suit lands and to use them permanently for agricultural purposes on the strength of an unregistered deed of permission executed by Mahant Harekrushna Das. The plaintiff's father thus acquired right of occupancy in respect of the suit lands. The plaintiff, the only son of his father, continued in peaceful possession of the suit lands as the Karta of his joint family after the death of his father. In the draft record of rights the names of the plaintiff and his family members were recorded in spite of objections of the defendants. Thereafter the defendants tried to dispossess the plaintiff from the suit lands and then the plaintiff came to learn that the defendants had fraudulently obtained settlement of fair and equitable rent in respect of different portions of the suit plot under the Orissa Estates Abolition Act, 1952 (hereinafter referred to as the Act) in Case No. 528 of 1959/60 without service of notice in accordance with law. Neither the plaintiff nor any member of his family had any knowledge of the institution, pendency or disposal of the estate abolition case. The defendants had also illegally included the suit plot in a deed of partition purported to have been effected between them on 17-2-1960. It is alleged that settlement of fair and equitable rent with the defendants was void and did not bind the plaintiff. The plaintiff has alternatively claimed valid title in respect of the suit lands by way of adverse possession.

(3.) The written statement filed by defendant No. 2 has been adopted by defendants 1, 3 and 4. According to the defendants, the suit lands originally belonged to Mahant Jayaram Das who died leaving behind his four sons including Mahant Harekrushna Das and the said Harekrushna Das being only one of the four sons had no legal competence to create any leasehold interest in favour of the plaintiff's father in respect of the suit lands which were a part of the ancestral properties of the four sons of Mahant Jayaram Das and who were in a state of jointness till 1958. Execution of any deed of lease by Mahant Harekrushna Das in 1945 is denied. The deed is either forged or manufactured with the aid of an ex-employee of the Mahant's father who had been discharged from service. The suit lands had been recorded as Nij-dakhali of the defendants' estate. After the estate vested in the State in 1959, all the four branches of the defendants' family filed petitions under Sections 6 and 7 of the Act and after regular enquiry through notices and drum-beating, separate pattas were issued to the four branches of the family who were accordingly paying rent thereof. In the family partition, the suit plot was divided amongst the brothers, but the other three branches have allowed defendant No. 2 to use it as a threshing- floor. Neither the plaintiff nor his father had filed any application under Section 8A of the Act to be recognised as a tenant under the State. It is alleged that the draft record-of-rights was manipulated by the plaintiff and his co-sharers, but the defendants have filed abjections for the purpose of rectification of the same and his matter is still pending. The possession of the plaintiff's father and after him of the plaintiff and the members of his family is also denied. It is asserted that till 1962 defendants 1 to 4 were in joint possession of the suit lands and thereafter defendant No. 2 has alone been in possession of the same.