PRAFULLA CHANDRA MISHRA Vs. KANHU CHARAN MOHANTY

JUDGEMENT

(1.) This 2nd Appeal has been preferred against the confirming Judgment.

(2.) The appellant of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.221 of 1988 and he was the appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.20 of 1991. The respondent of this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.221 of 1988 and he was the respondent before the 1st Appellate Court in the 1st Appeal vide T.A. No.20 of 1991. The suit of the plaintiff before the Trial Court vide T.S. No.221 of 1988 was a suit for permanent and mandatory injunction. The suit properties are Ac.0.15 Decimals out of Ac.0.23 Decimals of plot No.131 under Khata No.12 in village Bhagabatpur specifically shown in the sketch map attached with the plaint.

(3.) As per the plaint of the plaintiff, the suit properties is a part of the plot No.131, because the area of the plot No.131 is Ac.0.49 Decimals under Khata No.12. The properties covered under suit plot No.131 under Khata No.12 were originally belonged to one Baidhar Pati and the said Baidhar Pati was the owner of the entire Ac.0.49 Decimals of suit plot No.131. That Baidhar Pati sold Ac.0.06 Decimals of land out of Ac.0.49 Decimals of plot No.131 from its western portion to one Gobinda Tripathy in the year 1932. Then, he (Baidhar Pati) sold Ac.0.17-4 Kadis of land from its Northern portion and Ac.0.02-6 Kadis from its eastern portion to one Gangadhar Mishra (who was the grandfather of the plaintiff) in the year 1951 by executing and registering the sale deed. After selling the aforesaid Ac.0.26 Decimals of suit plot No.131 to Gobinda Tripathy and Gangadhar Mishra out of Ac.0.49 Decimals, the rest Ac.0.23 Decimals of that plot No.131 remained with the owner i.e. Baidhar Pati. Thereafter, Baidhar Pati sold Ac.0.08 Decimals of land out of rest Ac.0.23 decimals of suit plot No.131 to one Ramachandra Mishra through R.S.D. dtd. 6/5/1974. Thereafter, Baidhar Pati died. After the death of Baidhar Pati, his successor i.e. his daughter Kanak Pati sold the remaining Ac.0.15 Decimals of suit plot No.131 to the plaintiff by executing and registering the sale deed dtd. 10/2/1988 and delivered possession thereof. Accordingly, the plaintiff became the owner of Ac.0.15 Decimals of his purchased land of suit plot No.131 and possessed the same being the owner thereof. The said purchased Ac.0.15 Decimals of the plaintiff are the suit properties. The further case of the plaintiff was that, as Baidhar Pati sold Ac.0.08 Decimals of suit plot No.131 to Ramachandra Mishra from the northern portion of that plot No.131 out of rest Ac.0.23 Decimals of land keeping the balance Ac.0.15 Decimals of land towards south with him and as the said Ramchandra Mishra sold his purchased Ac.0.08 Decimals to the defendant, for which, the claim of the defendant is confined to the northern Ac.0.08 Decimals of suit Plot No.131, but he (defendant) has no right over any portion of the purchased Ac.0.15 Decimals of land towards the south of plot No.131, which was purchased by him (plaintiff) from Kanak Pati (daughter of Baidhar Pati). The purchased Ac.0.15 decimals of land from suit plot No.131 i.e. the suit land is the adjacent land of the purchased Ac.0.08 decimals of the defendant. Therefore, the defendant has no manner of right, title, interest and possession over the suit properties i.e. over the purchased Ac.0.15 Decimals of land of the plaintiff. As the defendant constructed boundary wall and led foundation for construction of house encroaching some portions of the suit land, then, without getting any way, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.221 of 1988 praying for restraining the defendant permanently from entering upon the suit land and from making any new construction over the same and to direct the defendant by way of mandatory injunction for demolition of the boundary wall along with other reliefs, to which, he (plaintiff) is entitled for.