PARBATI @ PARA DEI (DEAD) Vs. CHANDRAMANI BARIK

JUDGEMENT

(1.) THIS Second Appeal is against the judgment and decree dated 17.7.1999 and 23.7.1999, respectively, passed by the learned Additional District Judge, Bhadrak in T.A.No.13/27 of 1983/1988 confirming the judgment and decree dated 17.12.1987 and 4.1.1988, respectively, passed by the learned Munsif, Bhadrak in O.S. No.257 of 1985 -I dismissing the suit. The plaintiff in the suit, Parbati @ Para Dei is the original Appellant in this Second Appeal. She filed the suit for declaration that despite of the wrong recording in the M.S.R.O.R. in the names of the defendants and/or their ancestors she has got right, title and interest in the suit land appertaining to M.S. Plot No.3793 under M.S. Khata No.138 of Mouza Baralpokhari measuring Ac.0.03 decimals corresponding to C.S. Plot No.3520 under C.S. Khata No.29 of the same mouza. Further prayer made by her is for confirmation of her possession and if, found dispossessed during pendency of the suit, for recovery of possession.

(2.) PLAINTIFF 's case, in short, is that one Budhi Barik was the stitiban rayat in respect of R.S. Plot No.3847 measuring Ac.1.48 decimals out of which he sold Ac.0.08 acre to one Maguni Behera vide registered sale deed No.171/10.1.1927. Since the C.S. R.O.R. was finally published in the year 1928, soon after the sale transaction, the same could not be reflected in the C.S. R.O.R. But Maguni remained in possession of his purchased land since the date of his purchase. In the C.S. R.O.R. published in 1928, Ac.0.08 decimals of land purchased by Maguni stood recorded under Plot Nos.3524 (Ac.0.05) and 3523 (Ac.0.04) of C.S. Khata No.29 in the name of Panu Barik who is the father of Plaintiff's vendor Budhi Barik. In 1954 Maguni filed T.S. No.122/1954 -I in the Court of Munsif, Bhadrak for declaration of his title with respect to the said C.S. Plot Nos.3523 and 3524 as well as for eviction of some other defendants in that suit from a portion of one of the plots. In that suit some of the present defendants and the ancestors of rest of them were made proforma defendants. The suit was decreed in Maguni's favour. Some days after the decree was passed in that suit, there was an oral exchange between Maguni, on one hand, and the proforma defendants of that suit, on the other. In terms of the oral exchange Maguni gave his C.S. Plot No.3523 and got in exchange C.S. Plot No.3520 measuring Ac.0.03 decimals from the other side. After getting delivery of possession of C.S. Plot No.3520 (hereinafter referred to as the suit plot) Maguni continued to remain in possession thereof by constructing a thatched house thereon, and let it out to others on rent. After Maguni's death his widow Nandi, the only successor of Maguni, sold Ac.0.02 decimals out of the suit Plot No.3520, along with C.S. Plot No.3524 and some other undisputed plots, by executing registered sale deed No.17195/25.11.1969 in favour of the Plaintiff Parbati @ Para Dei who is none other than the granddaughter (daughter's daughter) of Maguni and Nandi. The Plaintiff being the only successor in interest of Maguni and Nandi inherited the balance one decimal out of the suit plot and thus, became the owner in possession of the entire suit plot. It is also the Plaintiff's case that C.S. Plot Nos.3523 and 3524 correspond to M.S. Plot Nos.3791 and 3792 and that while M.S. Plot No.3792 stands recorded in Plaintiff's name, the other plot stands recorded in the names of the defendants/their predecessors -in -interest which supports the Plaintiff's stand that Maguni gave his C.S. Plot No.3523 (corresponding to M.S. Plot No.3791) in exchange for C.S. Plot No.3520 (corresponding to M.S. Plot No.3793). It is also pleaded by the Plaintiff that since the suit land has been in possession of her ancestors since 1955 and after them in her possession to the full knowledge of the defendants or their ancestors without any interruption she has acquired title therein by way of adverse possession.

(3.) DEFENDANT Nos.1 to 5 and D.10 jointly filed a written statement denying all the plaint averments and taking the specific stand that suit Plot No.3520 stood recorded as 'rasta' in the name of Chandra Barik but Chandra Barik had no exclusive right over it in as much as the land is being used as 'rasta' by all the co -sharers of Chandra Barik. Their further stand is that at no point of time Maguni got the suit Plot in exchange of his C.S. Plot No.3523. It is denied that Plaintiff's ancestor Maguni had raised any house over the suit plot and asserted that the defendants have all along been using the land appertaining to the suit plot as road having ingress to and egress from their dwelling houses. It is denied that C.S. Plot No.3523 has been recorded in the names of the defendants on the basis of the exchange. But they admit that their residential house stands on C.S. Plot No.3523 since time immemorial. It is also asserted that M.S. Plot No.3793 which correspondents to suit Plot No.3520 is correctly recorded in the names of the defendants/their ancestors.