MUKTA ROUT AND OTHERS Vs. NIRANJAN MOHAPATRA

JUDGEMENT

(1.) The petitioners, who are the legal heirs of the original defendant, have filed this writ petition challenging the order dated 19.3.2013 passed by the learned Civil Judge (Jr. Division), Jaipur in T.S. No. 144 of 2005 rejecting the application for amendment of the written statement on the ground that the Court should be liberal in the matter of amendment of written statement.

(2.) The short fact of the case in hand is that the opposite party being the plaintiff filed Title Suit No. 144 of 2005 in the Court of the learned Civil Judge (Jr. Division), Jaipur praying for decree of demarcation, permanent injunction and recovery of possession. One Gouranga Mohapatra has two sons, namely, Chaitanya and Nityananda while the plaintiff-Niranjan is the son of Chaitanya. Lot No. 1 property belongs to nim. The land of defendant adjoins to plot Nos. 1674 and 1666/2742. It is stated by the plaintiff that the defendant constructed a house encroaching the suit land. The original defendant is the grand son of Sriram Rout, who has two sons, namely Adikanda and Banchanidhi. After Adikanda, the deceased-defendant got half share of the property of Sriram while Chaira Dei, wife of Banchanidhi got half share of the property of Sriram. Chaitanya and Nityananda purchased AO.02.04 links and out of that they sold A0.2.03.12 bis was of land from plot No. 1666/2742 towards north to the deceased-defendant keeping 25 sqr. links, i.e., 10 x2-l/2 links in the southern side. When the deceased-defendant tried to encroach the land of the plaintiff-opposite party to construct house on it, suit was filed praying therein for demarcation of northern boundary by a Civil Court Commissioner and to injunction the deceased-defendant not to enter upon the suit land. The deceased-defendant by filing a written statement denied the plaint allegation and took the stand that he is the power of attorney holder of his father, who was hold and sick and did not dispute the sale-deeds dated 9.11.1960 and 5.11.1984. The specific stand of the deceased-defendant is that plot No. 1666/2742 measuring an area of AO. 18 decimals belonged to one Sriram. Adikanda and Banchanidhi are two sons of Sriram. After the death of Adikanda and Banchanidhi, Baishnab, the deceased-defendant and Charia became the owner of the above land having 50% share in it while deceased-defendant was possessing northern side of the plot, Charia was possessing the southern side of the plot. Charia sold A0.2.24 kadi of land to Chaitanya and Nityananda on 9.11.1960. Thereafter they sold A0.2.03 kadi. 12 bis was land lo the deceased-defendant keeping 25 sqr. links of land adjoining to their homestead plot No. 1674. The deceased-defendant got delivery of possession of such land and got the land demarcated on 3.3.1985 through an Admin, namely. Guru Charan Jena in presence of the father of the plaintiff and their Admins, namely, Kartik Ch. Ojha and other witnesses and constructed a puca boundary wall for identity. The further stand of the deceased-defendant is that he has neither encroached the land of the plaintiff nor constructed any boundary wall on 22.6.2005 encroaching upon the land of the plaintiff-opposite party, rather the plaintiff-opposite party broke the wall of the defendant on 15.7.2010 for which the deceased-defendant prayed for dismissal of the suit with cost.

(3.) On the basis of the pleadings available on record, the Trial Court framed six issues, examined four witnesses from each side and considering the documents of the parties, decreed the suit directing the defendant to remove the construction and obstruction from the suit land with a further direction to deliver vacant possession of the suit land and in the event of failure on the prayer of the plaintiff-opposite party, the Court would appoint a Civil Court Commissioner for demarcation of the suit land and recovery of possession.