MAHESWARI MAJHI Vs. GOVT. OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed by the petitioners assailing the order dated 25.08.2007 passed by the learned Civil Judge (Junior Division), Jaleswar in T.S. No. 618 of 1998 rejecting the application filed by the plaintiff petitioners under Order 22, Rule 4, C.P.C. along with a petition under Section 5 of the Limitation Act for substitution of legal representatives of deceased defendant No. 8 and to condone the delay for filing of substitution petition.

(2.) The fact of the case in hand is that the predecessors of the present petitioner Nos. 1 to 6 and petitioner Nos. 7, 8 and 9 as plaintiffs filed a suit registered as T.S. No. 618 of 1998 in the Court of the learned Civil Judge (Junior Division), Jaleswar impleading the present opposite parties as defendants seeking for declaration that the R.O.R. in respect of 'Kha' schedule property is null and void and for permanent injunction restraining the defendants to create disturbance in the peaceful possession of the plaintiffs. The further case of the plaintiff is that the suit schedule property was originally recorded in the name of Madhab Majhi and Gajendra Majhi, fathers of the plaintiff No. 1 and plaintiff Nos. 2 to 4 respectively. The father of the respective parties while possessing the 'K' schedule property died and there after the plaintiffs were possessing over the suit schedule property jointly without any disturbance from any quarter. While they were in possession of 'K' schedule property, the disturbance cropped up between the plaintiffs for which reason there was an amicable partition of 'K' schedule property between the plaintiffs. It is stated that while they were in possession of the schedule land in respective shares, some of the Government employees on behalf of the opposite party Nos. 1 and 2 started creating disturbances by making measurement to construct bridge over the suit schedule land and on being asked by the defendants about such work defendant Nos. 1 and 2 disclosed for the first time that the suit land has been recorded in the name of the Government during the Major Settlement. Therefore, the plaintiffs were constrained to file the suit.

(3.) On being noticed, defendants have entered appearance and defendant Nos. 4, 5, 7 arid 9 to 16 close to file written statement denying all the contents raised in the plaint stating therein that the property appertains to Hal Plot No. 748 and 753 of Hal Khata No. 6 is the ancestral and homestead property of the defendants and they are in possession of the same since time immemorial. It is stated that the suit schedule land is the only approach road of the defendants to their agricultural land and there is no other alternative road to approach the agricultural land of the defendants and they are in continuous possession of the said approach road to the knowledge of the plaintiffs and the plaintiffs have got no right, title and interest over the same. Therefore, they claim for dismissal of the suit.