CHENNURU GOURI VARAPRASAD BABAJI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The judgment dated 13.8.2002 passed by the Addl. District Judge, Gajapati, Parlakhemundi, in Title Appeal No. 17/95 setting aside the judgment and decree passsed by the Civil Judge (Sr. Division), Parlakhemundi, in T.S.No. 25/92 and remanding the case to the Lower Court for retrial is assailed by the plaintiff in this appeal filed under Order 43, Rule l(u) of the Code of Civil Procedure.

(2.) The appellant as plaintiff filed T.S.No. 25/92 in the Court of civil Judge (Sr. Div.), Parlakhemundi, inter alia, praying for declaration of title and permanent injunction. The subject matter of the suit is a Bungalow-Cum-residence locally called as "Dewan Bungalow" situated in Parlakhemundi Municipal, Ward No.16, Municipal Survey No. 1146 appertaining to Sabik Plot No. 105 of Mouza Kaviti Khaspa, measuring Ac. 2.094 cents. The suit premises originally belonged to Ex-Maharaja of Parlakhemundi Late Krushna Chandra Gajapati Narayan Deo. After his death in the year 1975 Gopinath Gajapati Narayan Deo inherited the Bungalow. It is pleaded in the plaint that after abolition of the Parlakhemundi estate in consonance with the provisions of Orissa Estate Abolition Act, 1952 and after the litigation cropping up from the said notification came to an end, Late Maharaja submitted an application under Section 6 of the O.E.A. Act for settlement of the disputed properties along with other properties in his favour. According to the averments in consonance with the said application the properties in question were settled in favour of the Ex-intermediary. In the year 1965 the property was furnished as security to the Governor of Orissa. Several averments are also made in the plaint to establish the assertion that Late Maharaja owned and possessed the said property as an absolute owner, before vesting and also after vesting of the estate. In the year 1975 the property was sold to one Bhaskar Rao, father of the plaintiff/appellant. In 1976 the said Bhaskar Rao initiated a house rent control proceeding to evict a department of the Government which was occupying the bungalow in rent and in consonance with the decree passed the depart- ment was evicted from the property. It is stated Bhaskar Rao and after him his son the present plaintiff asserted various rights of ownership over the property till 1991 when a proceeding under the Orissa Prevention Land Encroachment Act was initiated. Being aggrieved the plaintiff was constrained to file the suit. Defendant Nos. 1 & 2, i.e. State of Orissa and Tahasildar contested the suit by filing a written statement. The stand taken in the written statement in short was that the land and the building which are the subject matter of the suit were not homestead lands. It never belonged to Krushna Chandra Gajapati Narayan Deo. The same was an Anabadi plot and the Ex-Maharaja constructed a building over a portion of the suit land for his estates servants. The estate vested in consonance with the OEA Act, 1951 in the year 1953. According to the notification the property vested with the State free from all encumbrances. The Ex-intermediary never claimed the suit land for settlement and no application under Section 6 of the OEA Act was filed. All other assertions made in the plaint were also strongly repudiated. It is contended that the State has no knowledge with regard to the decree passed in the house rent control case and as the property belongs to the State and the plaintiff has encroached upon it, a proceeding under the Orissa Prevention of Land Encroachment Act was rightly initiated.

(3.) Defendant No.3, the legal heir of Maharaja Parlakhemundi, filed a separate written statement through his general power of attorney holder. In the written statement, it is asserted that the Bungalow and its premises was under the Khas possession of the Maharaja. The same did not vest with the Government of Orissa in consonance with the OEA Act. The same being under khas possession of the Maharaja, deemed to have been settled in his favour under Section 6 of the OEA Act and this fact was intimated by the then Tahasildar by letter dated 25.7.1971. That the lands were settled in favour of the Ex-intermediary is corrborated by the fact that the Government accepted the said properties as security. The alienation of the properties in favour of Bhaskar Rao by a registered sale deed is admitted. Defendants 4, 5 & 6 filed a separate written statement supporting the stand taken by the plaintiff. On the basis of the pleadings, the Trial Court framed as many as seven issues.