SK. DAUD ALLI Vs. RAMTUN BIBI

JUDGEMENT

(1.) Both these appeals are directed against the common judgment dtd. 31/10/2016 passed by learned Addl. District Judge, Bhubaneswar in RFA No. 3/2 of 2007/2005 (arising out of T.S. No. 611 of 2000) and RFA No. 18/53 of 2006/2005 (aris.ing out of T.S. No. 765 of 2000). Both the civil suits referred above i.e., T.S. No. 611 of 2000 and T.S. No. 765 of 2000 were also disposed by a common judgment and decree passed by learned Civil Judge (Senior Division), Bhubaneswar on 16/11/2004 and 30/11/2004 respectively.

(2.) One Mir Saeed @ Saheed was the plaintiff in T.S. No. 611 of 2000, which he filed for declaration of title and permanent injunction. It was his case that he had purchased Ac.1.070 dec. of land appertaining to Hal Plot No. 71 in Hal Khata No. 196 corresponding to Sabik Khata No.256/5 and Sabik Plot No. 25/775 of Mouza Jadupur from the recorded tenant, Sk. Mahammad Ali (defendant) for a consideration of Rs.25,000.00 vide registered sale deed No.5187 dtd. 22/8/1984. The defendant sold him said land after obtaining necessary permission from the Bhubaneswar Development Authority (BDA) and delivered possession to the plaintiff. Since then, the plaintiff has been in possession of the purchased land with the boundary being described in the sale deed as also the map attached to the same. He constructed a house over the purchased land and started residing with his family. He also mutated his name in respect of the property vide Mutation Case No. 3615/1988. While he was in peaceful possession of the purchased land, the defendant, looking at the escalation of cost of the land in the locality as also the fact that there was a Government land to the south of the land purchased by the plaintiff, unilaterally executed a deed of rectification on 28/3/1998 purportedly to correct the mistake in the RSD dtd. 22/8/1984. He also initiated a proceeding under Sec. 144 of Cr.P.C. being Criminal Misc. Case No. 552/1999 before the Sub-Divisional Magistrate, Bhubaneswar falsely alleging breach of peace. He also applied for demarcation of his land including the land sold to the plaintiff. The plaintiff having come to know of such clandestine activity of the defendant, filed the suit with prayer that the unilateral deed of rectification dtd. 28/3/1998 be cancelled under intimation to the SubRegistrar and for declaration of his right, title and possession over his purchased land as per the RSD dtd. 22/8/1984 and the sketch map and boundary mentioned therein. He also prayed to permanently injunct the defendant from disturbing his possession.

(3.) The defendant contested the suit by filing written statement. He stated that being an ex-military man he was allotted Ac.5.00 dec. of land from the Government from Khata No. 256/5, which was recorded in his name vide Chaka Khata No.196 in the consolidation operation. He admitted to have sold Ac.0.270 dec. of land to the plaintiff for legal necessity from plot No.71 vide RSD dtd. 22/8/1984 after obtaining necessary permission from BDA. He also admitted to have delivered possession to the plaintiff but took the specific plea that such delivery of possession was not as per the description of boundary mentioned in the sale deed. He also took plea that he had further land to the south of the land sold to the plaintiff and thereafter there was a Government land. While preparing the sale deed dtd. 22/8/1984, the southern boundary was wrongly described and the sketch map was also wrongly prepared showing existence of government land adjacent to the eastern side of the purchased land of the plaintiff. Since the plaintiff wanted to take advantage of existence of the Government land, the defendant in order to protect his land existing between the land sold to the plaintiff and the government land, executed the deed of correction (rectification) vide document No.1265 dtd. 28/3/1998 and sent the same to the plaintiff. Since the plaintiff did not respond, he applied for demarcation, which was conducted by the Revenue Inspector of Patrapada on 23/7/1998 in presence of the plaintiff and local gentlemen. Despite such demarcation, the plaintiff tried to encroach upon an area Ac. 0.025 dec. of defendant's land situate to the south of the plaintiff's purchased land for which the defendant initiated the proceeding under Sec. 144 of Cr.P.C. He also filed the suit being T.S. No. 765 of 2000 for declaration that the plaintiff has no manner of right, title, interest or possession over any portion of the suit land.