BHIMASEN BEHERA Vs. BRAJA BEHERA

JUDGEMENT

(1.) This is an appeal under Order-XLIII Rule-1(u) of the Code of Civil Procedure, 1908 (in short 'the CPC') against the reversal judgment dtd. 24/9/2009 passed in RFA No.2 of 2005 by which the learned First Appellate Court, while setting aside the judgment dtd. 15/1/2005 and decree dtd. 8/2/2005 of the learned Civil Judge, (Jr. Division), Athagarh dismissing the suit in CS No. 04 of 2004, has remitted the matter to the learned trial Court for deciding it afresh by allowing the plaintiffs-Respondents here in the SAO to file consolidated plaint by adding one Mitu Behera as a party to the suit and giving opportunity to prove the three rent receipts in evidence.

(2.) The facts sufficient to dispose of this appeal in precise are that the present Respondent Nos. 1 to 3 (R1 to 3) along with their deceased mother being the plaintiffs had instituted a suit in CS No.04 of 2004 in the Court of learned Civil Judge (Jr. Divison), Athagarh against the present appellants and R4 to 6 seeking a decree to declare their right, title, interest and possession over the suit land with consequential prayer to permanently restrain them from creating any disturbance in their peaceful possession thereon and further with an alternative prayer for recovery of possession in case the plaintiffs were found to be dispossessed over any portion of the suit land during pendency of the suit. According to the plaintiffs, their predecessor-in-interest namely Sudar Behera had purchased the suit land from one Raj Kishore Patnaik vide RSD No.362 dtd. 16/4/1963 and he accordingly, possessed thereof in sabik Plot No. 2481 appertaining to sabik Khata No. 581 of Mouza-Panchagaon for the entire extent land of Ac.0.17 dec. by putting green fence around the land, but during the settlement operation in 1985, only an area of Ac.0.10 dec. out of the suit land was recorded in the name of said Late Sudar Behera in Plot No.4622 of Khata No.847, who was possessing the entire suit land of Ac.0.17 dec. and the plaintiffs continued to possess the suit land after death of the common ancestor Sudar Behera. However, taking advantage of wrong recording in Settlement Operation, the defendants being the adjoining Western side tenants of the plaintiffs, attempted to encroach upon Ac.0.40dec. of land, out of the suit land for construction of their house and they accordingly, dug foundation on 14/2/2004 eventually compelling the plaintiffs to institute a proceeding U/S.144 of CrPC in the Court of learned Executive Magistrate, Tigiria in Crl. Misc. Case No.07 of 2004 wherein the defendants were ordered to be restrained, but due to efflux of time, the aforesaid case was dropped. When the plaintiffs could know about the wrong recording in the settlement records in the month of February, 2004, they instituted another proceeding(revision) in R.P. No.194 of 2003 before the Joint Commissioner, Survey, Settlement and Consolidation, Orissa, Cuttack, who remitted the case to Tahasildar, Tigiria for disposal in accordance with law, but since the defendants on 19/6/2004 again attempted to invade upon the suit land despite pendency of the R.P. case, the plaintiffs were constrained to institute the suit. 2.1 In response to the summons of the suit, the defendants by entering appearance had filed their joint written statement claiming inter alia that a portion of Hal Plot No. 4623 corresponding to sabik Plot No.2482 situated to the adjoining South of the suit land was carved out and amalgamated for the purpose of construction of village road and in lieu thereof, some portion of the suit plot was amalgamated in Hal Plot No.4623 corresponding to sabik Plot No.2482. It is further stated by the defendants in the written statement that D4, 5 and Mitu Behera being the three sons of D1 had purchased an area of Ac.0.05 dec. towards the North of Hal Plot No.4624 out of the total extent of Ac.0.35 dec. from one Abhina Behera, which fell to his share on mutual partition and they have never encroached upon any portion of the suit land and the plaintiffs instead of agitating their claims as against the owner of Hal Plot No.4623, with which some portion of suit land has been amalgamated have filed the suit without any basis. In addition to above plea, the defendants in their written statement had claimed that the suit is bad for non-joinder of parties like Mitu Behera and other brothers of D4 and 5 as well as the owner of Hal Plot No.4623.

(3.) On the basis of rival claims, the learned trial Court framed necessary issues with regard to maintainability of suit, law of limitation, cause of action for the suit and entitlement of the plaintiffs, in addition to the following four core issues:-