DHUBAL DHARUA Vs. SARTUKA DHARUA AND ORS.

JUDGEMENT

(1.) SECOND Appeal No. 160 of 1963 and Second Appeal, No. 161 of 1963 respectively arise out of Title Suits no 4 and 5 of 1958. The land in dispute in T.S. No. 4 of 1958 is plot No. 614/1 covering an area of 0.60 acre and the land in dispute in T.S. No. 5 of 1958 is plot No. 180 covering an area of 0.50 acre. Defendants 1 to 3 are the contesting Defendants in T.S. No. 4 of 1958 and Defendants 1 to 9 are the contesting Defendants in T.S. No. 5 of 1958. The other Defendant common in both the suits is the State of Orissa. Though the lands in dispute and the contesting Defendants are different, the facts are identically similar in both the cases, and the rights and liabilities of the parties arise out of the same proceeding and same document. The suits and appeals have accordingly been analogously heard. The facts in S.A. No. 160 of 1963 would cover the facts in the other appeal. As the facts of both the suits have separately been given by the Courts below, it would be sufficient, for the proper understanding of the case, to refer to the facts in T.S. No. 4 of 1958.

(2.) THE State of Orissa does not contest the suit. The case of the contesting Defendants is that there was an amicable arrangement since long between the various co -sharers and the suit lands is in the shares of Defendant No. 2. There was a proposal to take 0.60 decimals of land from the Defendants; but on their objection an identical area was taken from some other land. Moreover 0.60 acre cannot be carved out from the share of Defendant No. 2 alone. Defendants, in substance, make a denial and assert that the Thikadar cannot surrender the Thikadari tenure and the Government had no right to take out the disputed land from the possession of the Defendants and settle it with the Plaintiff.

(3.) MR . Rath advanced two contentions: