BISHNU CHARAN MOHANTY Vs. RAHAS BIHARI DAS

JUDGEMENT

(1.) In this Civil Revision filed under Section 115 of the Code of Civil Procedure, 1908, hereinafter referred as the 'Code' for brevity, the petitioners being the opposite parties in Misc. Case No.95 of 1987 of the court of Subordinate Judge, Bhubaneswar, has assailed the order passed by the learned Addl. District Judge, Bhubaneswar upholding the order passed by the learned Subordinate Judge in the aforesaid case, thereby directing the petitioners to put back the suit land to the possession of the opposite parties.

(2.) The case of the petitioners before the original court may be stated as follows:

(3.) In the current settlement, the suit village was renamed as Saralanagar under Unit No.31 and the possession of the petitioner was noted and a new plot was assigned to the possessed area of the petitioner and draft record of right was published in favour of the petitioner with respect to new plot no.71 having an area of Ac.0.189 decimals. Thus, the petitioner remained in physical possession of the suit plot from the date of her purchase having a good title over the same. The petitioner retired from her service on 31.01.1987 and on 20.02.1087 she came to know that opposite parties 1 and 2 after demolishing a part of boundary wall have trespassed into the schedule area and have cultivated the same forcibly. On enquiry it was revealed that opposite parties 1 and 2 instituted a suit before this court bearing O.S. No.32 of 1977 against opposite parties 3 to 5 for partition of certain lands including the suit land and the suit was decreed preliminarily on 14.04.1980. It was made final on 21.02.1984 confirming the report of the Commissioner and thereafter Execution Case No.18 of 1975 was initiated and the opposite parties 1 and 2 alleged to have taken possession under the execution of the said decree. The petitioner was not a party to the aforesaid litigation nor she was aware of the execution of the decree. Only after 20.02.1987, the petitioner came to know about her dispossession. The further case of the petitioner is that opposite parties 1 and 2 and their predecessors are the subsequent purchasers from the daughters of the petitioners' vendor and daughter of Bika Behera had sold land from the schedule khata when Bika Behera was alive, for which no title could be passed. However, the sale if any shall be subject to earlier sale made by Bika Behera in favour of the petitioner and the area purchased by the petitioner should not have been included as suit land in the partition. But opposite parties 1 and 2 without disclosing the true fact and their source of title have practiced fraud on the court and opposite parties 1 and 2 in order to make unlawful gain have not produced the uptodate tenancy ledger and have deliberately concealed the facts of current settlement, which is in progress since 1974 and parcha of which were made available in 1976. Opposite parties 1 and 2 while obtaining the schedule property as the holder of the decree have dispossessed the petitioner who is not a judgment-debtor nor is bound by the decree.