SARAT CHANDRA PATRA Vs. SARASWATA BIDYAPITHA

JUDGEMENT

(1.) THE order of the Munsif, Puri, dated 3.12.1982 in Original Suit No. 141/81 -1 rejecting, the petitioners application that the suit should be held to abate underSection 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ('the Act' for short).

(2.) THE gist of the plaintiffs' case as narrated in the plaint was that Sri Ram Chandra Mohanty (opposite party No. 3), Sharat Chandra Mohanty (opposite party No. 4) and one Sarbeswar Ray were the joint owners of plot No. 774 of the previous settlement of which the suit lands are portions. Sarbeswar Ray had 6 annas interest in the plot while opposite parties Nos. 3 and 4 has 10 annas interest therein. Sarbeswar, who was in separate possession of 12 and l/3rd decimals on the western side of the plot, sold the said area to opposite party No. 1 by a registered sale deed dated 31. 12. 1969. The plaintiff No. 1 amalgamated the said area with its adjoining lands and has been in possession thereof since of date of purchase. Subsequently, defendants Nos. 3 and 4 sold the rest of the plot No. 774 to plaintiff No. 2 by a registered sale deed dated 30th January, 1981. The purchase was for the benefit of plaintiff No. 1. Thus the plaintiff acquired right, title and interest in respect of the entire plot. It is further stated in the plaint that during the recent consolidation operation though the disputed plot was non -consolidable in nature being homestead land, records were prepared for it. The portions of the suit plot which had been in possession of defendants Nos. 3 and 4, opposite parties Nos.3 and 4 after the sale of by Sarbeswar were sold under different plots Nos. 942 and 944 with an area of 10 decimals and 4 decimals respectively. The said 2 plots were recorded in the name of said defendants since they had not executed the sale deed in favour of plaintiff No. 2 -opposite party No. 2 by them. The defendants Nos. 1 and 2 (petitioners), who were inimically disposed of towards the plaintiff threatened to encroach upon the suit property on the strength of a fabricated deed of sale of suit A, schedule property in their favour purported to have been executed by defendants Nos. 3 and 4. According to the plaintiffs and the said deed of sale did not convey any interest to the defendants Nos. 1 and 2. In paragraph 9 of the plaint the plaintiff averred that the defendants Nos. 1 and 2 have not derived any title to the suit property by or under the sale deed spoken to above. Their desire to interfere with the plaintiffs' possession in unsupported by law and fact and thus a declaration is necessary to prevent continuous scuffle in the locality over the suit property. The permanent injunction in needed as an urgent measure to protect plaintiffs' right to and enjoyment of the property.

(3.) THE trial Court on a consideration of the matter rejected the application filed by the defendants Nos. 1 and 2 on two grounds: