RAJ KISHORE BISWAL Vs. BIMBADHAR BISWAL

JUDGEMENT

(1.) Defendants 1 (Ka) to 1(Ga) in Title Suit No. 29 of 1974 of the Court of Subordinate Judge, Jajpur are the appellants in this appeal against a confirming judgement. The suit is one for declaration of title of the plaintiffs and for recovery of possession after setting aside the order passed in a proceeding u/s. 145, Cr. P. C. in respect of Ac. 6.23 decimals of land appertaining to Khata No. 375 in Mauza Markandapur described in detail in Schedule 'A' of the plaint.

(2.) One Markand Pani was the original proprietor of Tauzi No. 523 comprising the disputed plots appertaining to Khata No. 375. He executed a registered will on 7-12-1930 in favour of one Radhakanta Pani and Kumuduni Dasi (mother of Radhakanta) in respect of the disputed properties and some other undisputed properties, and appointed one Krushna Prasad Singh, Pleader, Jajpur as the executor of the Will. After Markanda's death in 1930, the aforesaid Kumuduni Dasi executed a Will in favour of her son Radhakanta in respect of all her properties including her interest in the suit Khata. She died in the year 1936 whereafter Radhakanta became the sole owner of the lands covered under the suit khata. Krushna Prasad Singh, the executor of the Will executed by Markanda was managing the properties covered thereunder during the minority of Radhakanta. When Ratdhakanta attained majority he possessed the lands in question and cultivated the same by his own plough and bullocks and through his own labourers till 1948. Finding some difficulty in continuing in khas cultivation of the land, Radhakanta inducted defendant No. 1 to cultivate the lands as bhag tenant on a sanja basis. Defendant No. 1 continued to possess the suit lands till some time in 1952 when on the demand of Radhakanta he gave up possession. Thereafter Radhakanta again began to cultivate the same personally through his own labourers. While Radhakanta was in khas possession of the land in dispute, the estate was abolished and Radhakanta made an application u/S. 6 and 7 of the Orissa Estates Abolition Act (hereinafter referred to as the 'Act for settlement of the lands in his favour by fixing fair and equitable rent. The said application was registered as Claim Case No. 28 of 1957-58. In the said claim case defendant No. 1 appeared and objected to the settlement prayed for by the plaintiffs on the ground that he had obtained a sanja patta on 3-3-1936 from the aforesaid Krushna Prasad and had acquired right of occupancy in course of time. According to the plaintiffs, the same was false plea founded upon a forged document purporting to the sanja patta. The plaintiffs further alleged that defendant No. 1 had never possessed the suit land as a tenant except for the years 1948-52 as earlier stated.

(3.) According to the plaintiffs, Radhakanta died in the year 1958 during pendency of the claim case referred to above and his son, defendant No. 2, was substituted in his place. It has been further alleged that at the time of hearing of the aforesaid claim case No. 28 of 1957-58 one Sri A. C. Prusty, Pleader, who was appearing for defendant No. 1 gave up the claim of occupancy right of the client in respect of the lands covered under the suit khata and admitted that the properties under the suit khata were in khas possession of the intermediary on the date of vesting and consequently the ex-intermediary should be settled with the land as occupancy tenant further admitted that the ex-intermediary did not possess more than 33 acres of land. The Estate Abolition Authorities by order dated 19-8-1969 decided the claim case No. 28 of 1957-58 in favour of Umakanta (defendant No. 2), who is the son of Radhakanta as occupancy tenant. Defendant No. 1, however, preferred O.E.A. Appeal No. 48 of 1959 before the Collector, Cuttack against the aforesaid order in Claim Case No. 28 of 1957-58, which was dismissed by the appellate authority by his judgement dated 17-11-1959. Against the appellate order defendant No. 1 preferred O.J.C. No. 2 of 1960 in this Court which was also dismissed on 3-1-1961. According to the plaintiffs, the aforesaid order of settlement u/Ss. 6 and 7 of the Act which became final enures to the benefit of defendant No. 3 (mother of defendant No. 2) and thus both defendants 2 and 3 became occupancy tenants in respect of Ac. 7.09 decimals of land covered under the suit khata.