PRAVAKAR UPADHYAYA Vs. BIDYADHAR MISHRA

JUDGEMENT

(1.) The Appellants, by filing this Appeal, under Sec. 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), have challenged the judgment and decree dtd. 5/8/2021 and 12/8/2021 respectively passed by the learned District Judge, Bhadrak in R.F.A. No.119 of 2014. The Respondents as the Plaintiffs had filed the suit (Civil Suit No.239 of 2006) for declaration of the boundary line of the land described in Schedule-'A' of the plaint and permanent injunction as against the Appellants arraigned as the Defendants in the suit from causing any disturbance in the peaceful possession of the said land by the Plaintiffs. The suit having been decreed, the Defendants since thereby suffered had carried the Appeal under Sec. -96 of the Code. The Appeal has also been dismissed and thereby the judgment and decree passed by the Trial Court have been confirmed. The Appellants as the Defendants thus have remained unsuccessful before the Trial Court as well as First Appellate Court. Hence, the present Second Appeal is at the instance of the Appellants (Defendants), who have remained unsuccessful in the Trial Court as well as First Appellate Court.

(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 Suit.

(3.) Plaintiff's case is that the suit land described in Schedule-'A' of the plaint originally belonging to Daitari Panda. He had no male child but had two daughters namely, Nirmala who is the wife of Plaintiff No.l and mother of Plaintiff No.2 and Rangalata another daughter namely, Rangalata, who is the Defendant No.2 and she is the wife of Defendant No.l and mother of Defendant Nos.3 and 4. It is further stated that two daughters of Daitari with their family were residing in the same village where their father Daitari was residing and they were residing right from the time of their marriage. Daitari being in need of money for his treatment had sold 3250 sq.links from Plot No.902, Ac.0.03 decimals from Plot No.906, Ac.0.04 decimals from Plot No.899 and Ac.0.34 decimals from Plot No.674 in toto 44250 sq.links. This was sold to the Plaintiff No.l, who happens to be his son-in-law, the husband of Nirmala, the daughter of Daitari namely, Nirmala. The sale was made by Daitari by executing registered sale-deed on 25/3/1996. From the time of purchase of the land, the Plaintiff No.l began to possess the same as its owner and that was also mutated in his name in Mutation Case No.1142 of 1996. Daitari then, on 26/9/1998, gifted away some lands to his two grandsons i.e. Plaintiff No.2 (son of Nirmala) and Defendant No.3. Prasanna (son of Rangalata). He thereby gifted away Ac.4.15700 sq.links to Plaintiff No.2 and Defendant No.3. The donees since the time of the gift possesses the respective gifted land through their natural guardians. The Plaintiff No.1 after his marriage was looking after the cultivation of Daitari Panda and he had also taken him for pilgrimage by spending money from his own purse. Daitari being pleased with the service of Plaintiff No.l, then gifted the land of Ac.5.96950 sq.links to him by executing another registered gift of deed on l8.08.200l. The Plaintiff No.l from that time being delivered with the possession of the said land and accepting the said gift has been possessing the said land. The Plaintiffs thus, are claiming to be the exclusive owners of Schedule-'A' land. It is stated that the Defendants have no right, title, interest and possession over the suit land, when they are the owners of the rest portion of the plots which they have also got on gift by Daitari. On 20/7/2006, when the Defendants attempted to forcibly encroached upon Schedule-'A' land on the pretext of demarcation, the Plaintiffs requested them for amicable demarcation to which they first agreed, but later on withdrew. So the Plaintiffs finally having no other alternative filed the suit.