RABINARAYAN JENA Vs. SUDHAKAR MOHANTY

JUDGEMENT

(1.) The Appellants, by filing this Appeal, under Sec. -100 of the Code of Civil Procedure, 1908 (for short, 'the Code') have assailed the judgment and decree passed by the learned Additional District Judge, Balasore in R.F.A. No.38/2008(199- 2014). The Predecessor-In-Interests of the Appellants as the sole Plaintiff had filed the suit (TS No.102/96-I) in the Court of the learned Civil Judge (Jr. Division), Balasore. During pendency of the suit, these Appellants in view of the death of the original Plaintiff came to be substituted and they pursued the suit. The suit stood dismissed. So, they had carried the Appeal under Sec. 96 of the Code. That Appeal has also been dismissed.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

(3.) Plaintiffs case is that the property in schedule 'Ka' of the plaint assigned with Khata No.284 in the current settlement standing recorded in the name of Kanduri Jena and Narayan Jena having been succeeded by them and they are in possession of the same under an enclosure being the absolutes owners. In the current settlement record of right, possession notes find place. In the Major Settlement Operation, 'Ka' schedule property pertaining to C.S. Plot No.236/667 was recorded in their favour along with Major Settlement Plot No.833 measuring Ac.0.01 dec., Plot No.834 measuring Ac.0.056 dec. in toto and Ac.0.066 dec, vide M.S. Khata No.255. There was inclusion of Ac.0.017 dec. of land towards east out of the C.S. Plot No.235 in M.S. Plot No.834. It is stated that C.S. Plot No.231 stood located towards east of their land under C.S. Plot No.236/667. It is stated that one Shyama Jena was the owner in possession of the said land under C.S. Plot No.231. While said Shyama Jena was possessing the same, he alienated a portion therefrom. After his death, his legal heirs followed the path of said Shyama Jena and transferred the same to different vendees from time to time. The Defendants thus claims to have acquired some portions thereof from the legal heirs of Shyama. It is stated that the Plaintiffs later learnt about the recording of the M.S. Plot No.832 measuring Ac.0.10 dec and M.S. Plot No.837 measuring Ac.0.060 in toto Ac.0.16 dec. under M.S. Khata No.269 in the name of the Defendants. They assert that during the Major Settlement Operation, the Settlement Authority have illegally recorded Ac.0.01 dec. from C.S. Plot No.236/667 in M.S. Plot No.832 and 834 belonging to the Defendants. So far as Major Settlement Map is concerned, according to them, Major Settlement map in respect of the suit land and its adjoining plots do not give the true picture as it ought to be in as much as they are in possession of Ac.0.05 dec. appertaining to suit property as before. In view of such wrong publication of the Major Settlement map, the Defendants gave threat to cut down their eastern side fence standing on M.S. Plot No.236/667 as also to take away coconut from the trees standing over there with a view to dispossess them. When the Defendants started gathering materials for erection of the pucca boundary wall, the suit came to be filed.