PADMACHARAN MOHANTY Vs. KOILI BEWA AND ORS.

JUDGEMENT

(1.) DEFENDANT No. 2 has filed this appeal against the judgment and decree of the learned Additional District Judge, Cuttack confirming the judgment and decree of the learned First Additional Munsif, Cuttack. Respondents 1 to 8 are the Plaintiffs and Respondents 9(b) to 9(f) have been substituted in place of deceased Respondent No. 9 who was Defendant No. 1 in the trial court.

(2.) PLAINTIFFS case is that the homestead land described in schedule 'Ka' appended to the plaint originally belonged to the late Muli Mohapatra, the husband of Plaintiff No. 1 and rather of Plaintiffs 2 to 8. The name of the late Muli Mohapatra was recorded in the record -of -rights and he was paying rent to the ex -landlord and after abolition of the Zamindary, to the State. Muli Mohapatra died on 30 -10 -1963 leaving behind him the Plaintiffs as his heirs and the latter continued to remain in possession of the suit land, Plaintiffs 6 to 8 the daughters of the late Muli Mohapatra, after their marriage relinquished their interest in he suit land in favor of Plaintiffs 1 to 5. 'Kha' schedule land appended to the plaint is 2 decimals out of 23 decimals comprising 'Ka' schedule land. 'Ga' schedule land appended to the plaint includes a house standing thereon and comprises an area of 25 feet (West -East) by 24 feet (North -South) situated to the south -eastern corner and within the 'Kha' schedule land. It is stated that the Defendants without having any manner of right, title or interest in respect of the suit -lands initiated a proceeding under Section 145, Code of Criminal Procedure in respect of the 'Kha' schedule land. The late Muli Mohapatra who was then alive was not made a party to the said proceeding wherein the possession of the Defendants was declared in respect of the 'Ga' schedule land. It is asserted that the order of the criminal court in the aforesaid proceeding does not bind the Plaintiffs as they were not parties and the late Muli Mohapatra was also not a party to the said proceeding. In spite of the order passed in the proceeding the Plaintiffs claim to be in possession over the suit land. The Plaintiffs have taken shelter of the Court because of the wrong order passed in the 145, Code of Criminal Procedure proceeding and they have prayed for declaration of their right, title and interest, for confirmation of possession, in the alternative, recovery of possession and for temporary injunction until disposal of the suit.

(3.) THE learned Munsif decreed the suit of the Plaintiffs and his main findings are that the particulars of the suit land described in the plaint are sufficient to identify the same and an effective decree can' be passed and that even assuming that the Defendants were in possession of the suit land, their possession was permissive in nature and did not vest in them any title thereon. The appeal filed by the Defendant has been dismissed and the findings of the learned Munsif have been confirmed. Thereafter Defendant No. 2 has filed the present appeal in this Court.