USARANI DAS Vs. BHAKTAHARI MOHANTY

JUDGEMENT

(1.) The plaintiff in O. S. No. 216 of 1968 who is defendant No. 2 in O. S. No. 6 of 1969 is appellant in both these appeals. Both the aforesaid suits were heard analogously and were disposed of by a common judgment by the Munsif, Bhadrak in his judgment dated 25-2-1975. The defendants in O. S. No. 6 of 1969 preferred T. A. No. 10 of 1975 and the plaintiff in O. S. No. 216 of 1968 preferred T. A. No. 11 of 1975 and both the appeals were disposed of by the Subordinate Judge, Bhadrak by a common judgment. The plaintiff in O. S. No. 216 of 1968 has filed both these Second Appeals against the judgment of the Subordinate Judge, Badrak passed in both the appeals.

(2.) In O. S. No. 216 of 1968, the plaintiff's suit was for a declaration of title, confirmation of possession, demarcation of the northern boundary line and for permanent injunction against the defendants in respect of a strip of land measuring Ac. 0.255 decimals appertaining to northern portion of Plot No. 76 under Khate No. 152/1 situated in village Banka. The plaintiff's case, in short, is that the suit plot No. 76 belongs to her as she purchased the same by a registered sale deed dated 3-6-1955 (Ext. 2). She claims to have possessed the same in one enclosure and constructed two quarters thereon and let out the same to the tenants. She claims to have paid rent for the land, holding tax etc., and has been in possession thereof exclusively both before and after the vesting of the estate in pursuance of the operation of the notification under the Orissa Estates Abolition Act. Her further case is that the defendants have no right, title and interest or possession over the suit land. Defendants have got their homestead to the adjoining north of the suit land separated by a fence belonging to the plaintiff which is repaired by her every year. The plaintiff alleges that the defendant No. 1 who was not pulling on well with the plaintiff's husband cut a portion of the northern boundary fence of the plaintiff on 4-121968 and disputed the title of the plaintiff over the suit, land. She was also threatened to be dispossessed from the suit land for which she has taken shelter of the Court in O. S. No. 216 of 1968.

(3.) The defendants in their joint written statement while denying the plaintiff's title and possession, alleged that the suit land vested in the Government in the year 1962 by virtue of the notification made under the Orissa Estates Abolition Act (hereinafter called 'the Act'). There having been no settlement of the suit land in favour of the plaintiff, no relief was available as prayed for by the plaintiff. It was further alleged that the suit was incompetent in the absence of the State of Orissa as a party-and that 4he suit was barred by limitation. According to the defendants, suit plot No. 76 belonged to the plaintiff's husband, Gopal Prasad Das and his co-sharers. The said Gopal Prasad Das was the Dewan under the Raja of Kanika and was looking after the joint family properties. In the record-of-rights the suit plot was wrongly recorded in the name of the Raja of Kanika though he had no title and possession over the suit plot. It was further alleged that the sale deed executed in favour of the plaintiff was fraudulent and was brought into existence at the connivance of plaintiff's husband which was never acted upon. They had also pleaded that the suit land did not appertain to plot No. 76, but was a part and parcel of their plots Nos. 74 and 75 which they have been possessing as of right for more than the statutory period. They also claimed that even if the suit plot appertained to plot No. 76, they had acquired title thereto by way of adverse possession. Simultaneously, they had challenged the settlement records if the suit land was found to be appertaining to plot No. 76. At the same time, the defendants alleged that they had acquired easementary right of way over the suit land and Plot No. 78 to go the village road appertaining to plot No. 249. According to them the plaintiff's husband and his co-sharers constructed two quarters over the suit plot five to six years back and this suit has been filed to harass the defendants. It was also pleaded that the suit was not maintainable in view of the pendency of rent fixation case No. 314 of 1962-63 in respect of the suit Khata filed by the father of defendant No. 1 under the provisions of the Act. On the aforesaid allegations, they claimed for dismissal of the suit with costs.