DASARATHI PATNAIK Vs. NILAMANI BEWA

JUDGEMENT

(1.) THIS is a defendant's second appeal against the confirming decision of the Courts below decreeing the plaintiffs' suit. The plaintiffs filed O. S. No. 216/66 -1 in the Court of the Munsif, Puri, for declaration of title, confirmation of possession and for recovery of damages of Rs. 20/ - in respect of a strip of land measuring 335 into 15 links appertaining the Sthitiban plot No. 963, as shown in red ink in the sketch map attached to the plaint. The gist of their case was that the disputed strip of land with a mango tree standing thereon was a part of their plot No. 953 which was demarcated by a ridge from plot No 964 belonging to the defendants. The plaintiffs asserted that they were in possession of the disputed strip of land along with the mango tree standing thereon. The defendants with a view to amalgate a portion.of the suit strip of land removed the intervening ridge on 9.7.1965 and subsequently forcibly plucked mango from the tree in question. Hence the suit. The defentants in their joint written statement contested the claim of the plaintiffs that the disputed strip of land appertains to plaintiffs' plot No. 963 and asserted that it is a part of their plot No. 964 and they have been in possession of the same for last several decades.

(2.) THE trial Court decreed the suit on contest against the defendants, declared the plaintiffs' title over the suit land measuring 300 links into 10 links as per the Commissioner's report marked as Ext. 6, including the mango tree and their possession over the same. The plaintiffs were entitled to recover Rs. 20/ - from the defendants towards damages. On appeal by the defendants the decision of the trial Court was confirmed and the appeal was dismissed. The present second appeal was filed by all the four defendants in the suit. During the pendency of the appeal appellant No. 4, Subal Charan Patnaik who was defendant No. 4 in the trial Court and appellant No. 4 in the lower appellate 'Court died and the order sheet reveals that in spite of several adjournments no steps were taken to substitute the legal representatives of the said deceased appellant. By order, dated 20th of February, 1984 this Court while giving 10 days time as last chance directed that in case no steps are taken for substitution the effect of non -substitution in place of appellant No. 4 shall be considered at the time of hearing. Thereafter neither any step for substitution has been taken by the appellant nor any other relevant material has been placed before the Court.

(3.) ORDER 41, Rule 4, C. P. C, reads as follows :