DEBAHARI KUMBHAR Vs. SRIBATSA PATRA

JUDGEMENT

(1.) The defendants in Title Suit No. 33 of 1979 of the Court of Munsif, Sonepur are the appellants against the confirming judgment of the Subordinate Judge, Sonepur in Title Appeal No. 7 of 1981. The suit is one for declaration of plaintiffs' title over the suit house and for recovery of possession of the same by evicting the defendants.

(2.) The case of the plaintiffs is that one Mr. Bala Patra is the original owner of the suit land who had one son Nilachal and a daughter Draupadi. He died leaving behind his widow who has been described as Mrs. Bala Patra and the aforesaid son and daughter. Plaintiffs 1 and 2 are the sons of Nilachal. Defendant No. 1 in the suit is the husband of Draupadi and defendant No. 2 is his second wife whom he had married after the death of Draupadi. The plaintiffs described the defendants as their tenants since 1970 and later their possession has been characterised as permissive possession. They filed a proceeding under the House Rent Control Act for eviction of the defendants in which a plea was taken by the defendants that the property has been surrendered in favour of defendant No. 1 by Mrs. Bala Patra. The H.R.C. case did not succeed as the relationship of landlord and tenant between the present plaintiffs and the defendants could not be established before the House Rent Controller for which the present suit has been filed describing the defendants as trespassers as they did not vacate in spite of demands by the plaintiffs.

(3.) The defendants denied the plaint allegations and asserted that Mr. Bala Patra died in the year 1950 leaving behind his widow Mrs. Bala Patra, son Nilachal and daughter Draupadi. Draupadi died leaving behind some children who were born in that house. The defendants claim to be in possession of the suit property since 1953. They also alleged that the suit property was surrendered in favour of defendant No. 1 by a document dated 15-3-1968 by Mrs. Bala Patra whereafter they have acquired valid title to the suit property. In addition, they have taken a plea in the written statement that Draupadi having died the properties left behind by Mrs. Bala Patra would devolve upon the son and daughters of Draupadi and in their absence the suit suffers from non joinder of necessary parties. They have also set up a plea of adverse possession saying that their long possession has matured to valid title in respect of the suit property.