PARBATI MALLICK Vs. LAXMAN MISHRA

JUDGEMENT

(1.) This Second Appeal has been filed against a reversing judgment and has been admitted on the following substantial of law:-

(2.) The plaintiff in T.S. No. 29 of 1997 is the appellant. The suit property pertains to C.S. plot No. 919 under C.S. Khata No. 234, measuring Ac.0.12 decimals corresponding to M.S. plot No. 989 measuring Ac.0.08 decimals and plot No. 941 measuring Ac.0.04 decimals under M.S. khata No. 591 of Village-Shyamraipur in the district of Bhadrak. The plaintiff-appellant in the suit prayed for declaration of her raiyati right, title and possession over the suit land and for confirmation of possession and in the alternative for recovery of possession if found dispossessed by the defendants, with an ancillary relief of permanent injunction against the defendants-respondents.

(3.) The case of the plaintiff-appellant was that she originally was an inhabitant of village Gelpur, samil-Gopabandhpur and is a member of Scheduled Caste. One Manik Basant Ray, W/O. Kailash Chandra Basant Ray of village Sarapada under Bhandari Pokhari Police Station was the owner of the suit land. The plaintiff-appellant constructed a dwelling house on the suit land in February, 1962. After having obtained permission from Manik Basant Ray, she constructed the house at her own expenses and is residing in the said house since 1962 till date. She was declared as a raiyat in respect of the suit land by the Tahasildar, Bhadrak vide order dated 6.3.1979 in a proceeding under Section 9 of the O.L.R. Act registered as O.L.R. Case No. 27 of 1978. Therefore, she has acquired indefeasible raiyati right over the suit land from the said date. She has been paying rent in respect of the suit land though the suit land is a homestead property with a dwelling house of the plaintiff-appellant. In the M.S. Khatian its status has been wrongly noted as "Sarada". By 6.3.1979 M.S. operation reached the stage of finality and the Khatian was prepared in the name of Manik Basanta Ray. But in due course, the Tenancy Ledger has been corrected and the defendants have got no semblance of right, title, interest and possession over the suit land. The defendant No. 1 having threatened the plaintiff-appellant on 15.1.1997 to evict her from the suit land on the ground that the defendants 2 to 4 have purchased the suit land from the heirs of Manik Basanta Ray, the cause of action arose for the plaintiff-appellant to file the suit. According to the plaintiff-appellant, Manik Basanta Ray ceased to have any title over the suit land from 6.3.1979 and her heirs had no right, title and interest and/or possession over the suit land for which they had no right to alienate the property in favour of the defendants and the transfer, if any, by the heirs of Manik Basanta Ray in favour of defendants is out and out illegal and void. An alternative plea was taken by the plaintiff-appellant that she has perfected her title by way of adverse possession.