BIPIN PANIGRAHI Vs. JOHONES PALO

JUDGEMENT

(1.) The appellant has filed this second appeal challenging the judgment and decree dated 25.8.2007 and 10.9.2007 respectively passed by the learned Addl. District Judge (FTC), Jeypore in RFA No.11/2007 (33/06 of the District Judge) reversing the judgment and decree dated 23.9.2005 and 9.10.2006 respectively passed by the learned Civil Judge (Senior Division), Jeypore in C.S. No.15 of 2006.

(2.) The following substantial questions of law arise to be determined in this second appeal;

(3.) Respondent no.1 as plaintiff filed the suit on the plea that he is in possession of the suit property described in the plaint as Schedule-A and B properties. He is using Schedule-B property for passage to the suit house and house site situated over Schedule-A property. Defendant nos.1 and 2 are tenants under the house owner Srinivas Rath, father of defendant no.3. They are the northern side neighbours of the plaintiff. Taking advantage of the situation, on 25.12.2005 defendant no.1 raised a wall over suit passage as a result of which the entrance to the house and house site of the plaintiff was obstructed. Defendant no.1 did not remove the said wall on the request of the plaintiff. Hence, a lawyer notice was issued. Thereafter, the plaintiff filed the suit for removal of obstruction from the suit properties relating to Schedule-B property. Defendant nos.1 and 2 filed their written statement traversing the plaintiff's allegations. They specifically pleaded that in the year 1971 defendant no.1 came to Jaypore for employment. As vacant land of the Government was available at Parabeda of Jeypore town, he constructed a house over Plot No.232 in Khata No.1458 and remained in possession of the same since then. Schedule-B property as described in the plaint is a part and parcel of defendant no.1's encroached land and right from the year 1972, the Tahasildar, Jeypore initiated OPLE Case No.13 of 1996 against defendant no.2. The penalty was assessed and defendants 1 & 2 were paying the penalty each year for possessing the aforesaid land. They totally denied that they are not the tenants under Srinivas Rath adjoining to the North of Schedule-A property. They also denied that Schedule-A property belongs to Government. The plaintiff is in illegal possession of the same for which an encroachment case has been initiated against them by the Tahasildar, Jeypore. They further pleaded that the suit was barred by limitation and also bad for nonjoinder of necessary parties, i.e. the State Government as the land belongs to it.