SRIDHAR MOHANTY Vs. KAMAL KUMAR AGARWALLA

JUDGEMENT

(1.) THIS revision is directed against an order dated 3 -10 -1983 passed by the Munsif. First Court. Cuttack, in T.S. No. 129 of 1983 rejecting an application filed by the Defendant under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. The facts relevant for the purpose of this revision are as follows:

(2.) THE Opposite party in this revision Kamal Kumar Agarwalla filed T.S. No. 129 of 1983 in the court of the First' Munsif. Cuttack against the present Petitioner praying for permanent injunction restraining him from going over the suit land or to make any construction thereon. It was also prayed that if, any construction has been made over the suit land the same be demolished by the Defendant Petitioner in this revisional within the period to be fixed by the court failing which the Plaintiff be permitted to demolish the construction and recover the costs: of demolition from the Defendant.

(3.) THE Defendant filed his written statement in which he had denied all the plaint allegations. According to the Defendant, Chandan Bilasini widow of Kali Krushna Sarkar was not appointed as the administratrix in respect of the property which was covered by the will executed by late Kali Krushna Sarkar. There were five executors appointed in the will arid the probate granted appended a list of properties to be administered by the executors. The Defendant further alleged that the disputed land was not the subject matter of the probate and therefore, Chandan Bilasini had no right to deal with or transfer the disputed land whether with or without permission of the District Judge. It was further stated in the written statement that in the will itself late Kali Krushna Sarkar imposed a restriction on Chandan Bilasini from transferring any property out of the estate left behind by him and, therefore, the lease, deed executed by Chandan Bilasini in favour of the predecessor -in -interest of the Plaintiff and his co -sharers is void a b initio. It was further pleaded that Sudhansu Sekhar Sarkar, the recorded proprietor of the Touzi had granted a permanent lease in favour of one Mahendra Swain in respect of Ac.4.60 decimals of land including the suit -land who in his turn sold the same to one Ananta Kumar Routaray by a registered sale deed dated 23 -1 -1962. According to the Defendant the said Ananta Kumar Routaray has sold Ac 3.50 decimals of land including the suit -land to the Defendant under a registered sate deed dated 4 -2 -1967 and the Defendant has been in peaceful possession of the aforesaid land with effect from the date of his purchase and has been paying rent till date. It is alleged by the Defendant that he has got his land demarcated by stone pillars and the Tahasildar got the same measured by an A min whose report and map have been accepted after due publication of public notice. The Defendant has decided to start a factory on the suit -land for which he has secured loan from the Government and is proceeding with the construction of the factory building, which is scheduled to be completed by December, 1983 according to the target fixed by the Government. He has got his name recorded in the consolidation proceeding and this suit has been filed by the Plaintiff who has no semblance of tight, title, interest or possession over the suit -land.