KHATRA NAIKA Vs. AKHULA DAS AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal against the reversing judgment of the Additional District Judge of Ganjam setting aside the judgment and decree of the Munsif of Aska and dismissing the Plaintiff's suit for permanent injunction against Defendant No. 1 for an anticipated trespass.

(2.) THE disputed property consists of about 8.82 acres in a raitwari village known as Babanpur in Aska taluk under Patta No. 125. The Plaintiff is the natural son of one Jagannath Naik. But he was given in adoption to Jagannath's brother Raghu prior to 1918. Defendants 2 to 6 are the remaining five sons of the said Jagannath Naik. The Plaintiff alleged that the disputed property originally belonged to his adoptive father Raghu) that after his death it devolved on the Plaintiff and that neither his natural father Jagannath nor his other sons (Defendants 2 to 6) had any interest in the same. Defendant No. 1 obtained a money decree against Jagannath Naik in O.S. No. 378 of 1937 and inexecution of that decree in E.P. No. 10 of 1944 he attached the disputed property on the ground that it belonged to Defendants 2 to 6 (Jagannath having died in the meantime sold it and in due course took delivery of possession on 24 -5 -41. The Plaintiff, however, alleged that actual delivery of possession never too place and that be sale by the executing Court would not affect his title inasmuch as the judgment -debtor's family (Defendants 2 to 6) had no interest in the disputed property. The Plaintiff) however, anticipated that armed with court sale and delivery of possession Defendant No. 1 may attempt to interfere with the Plaintiff's possession and hence he brought the suit for permanent injunction against Defendant No. 1 for anticipated trespass.

(3.) THE trial Court held that the Plaintiff had no title to the disputed proper by in as much as in 1918 a private partition bid been effected between Jagannath on the one hand and his other co -sharers on the other by an award (Ext. A) in which eighteen acres of land under patta No. 125 (including the disputed land) were specially allotted to Jagannath. This private partition was challenged by another co -sharer of Jagannath in a partition suit, (O.S. No. 30 of 1928) in the Court of the Subordinate Judge of Berhampur. But that Court confirmed the award by its judgment dated 30 -9 -1929. (Ex B) to which the Plaintiff, Jagannath and other co -sharers were all parties. In fact the Plaintiff himself in his deposition in that suit (Ext. D) clearly admitted that the award of 1918 was valid that each of the co -sharers was in separate possession of the properties allotted to him in that award and that hey were paying their is separately to the Government. As the disputed property admittedly fell to the share of Jagannath in the award there was no doubt of the fact that the Plaintiff had no title to the same. But the trial Court thought that Plaintiff had established his title by adverse possession after the decision of the Subordinate Judge in 1929 and that consequently the Court sale obtained by Defendant No. 1 against Defendants 2 to 6 would not affect the Plaintiff's title. The lower appellate Court, however, held that the evidence adduced on the Plaintiff's side to prove adverse possession was qui be inconclusive and that consequently the title which originally vested with Jagannath and his sons (Defendant 2 to 6) was not extinguished.