SAROJINI DEBI Vs. DIBAKAR SATAPATHY

JUDGEMENT

(1.) DEFENDANT No.1 and the legal heirs of deceased defendant No.2 are the appellants before this Court against a confirming judgment.

(2.) THE plaintiff -respondents filed the suit for declaration of title, recovery of possession after eviction of the defendants form the 'B schedule land and for mandatory injunction directing the defendants to remove the construction made over 'B schedule land. The case of the plaintiff -respondents is that plot No.811 under Khata No.87 of Village Gandarpur belonged to one Suhasini Debi. The said Suhasini Devi started selling her lands to different persons and one Kanhu Charan Pattnaik purchased some lands under two registered sale deeds dated 19.9.1958 and 19.5.1952. Out of the said lands, Kanhu Charan Patnaik sold 0.80 decimals to the plaintiff -respondents and defendant No.3 on 23rd March 1965. Out of the said 0.80 decimals, the plaintiff -respondent has interest over 0.40 decimals of land described in schedule 'A and the defendant No.3 is entitled to the rest. The further case of the plaintiff -respondents is that Suhasini Devi sold a piece of land to the defendant -appellants adjacent to the West of the 'A schedule land under occupation of plaintiff -respondents. Since, the plaintiff was staying away form Cuttack being a government servant, the defendant No.1 -appellant encroached upon 'A schedule land to the extent of an area of 49' x 14'.8 and constructed a house thereon.

(3.) ON the pleadings of the parties, the trial Court framed as many as eight issues. Out of the said issues, issue Nos.5, 6 and 7 are relevant for the purpose of the suit. On assessment of the evidence adduced, the trial Court held that the plaintiff -respondent has title and interest over the 'B scheduled land and that the defendant -appellants encroached upon 'B scheduled land belonging to the plaintiff -respondent. The trial Court also found that the defendant -appellants failed to prove continued and uninterrupted possession over the land encroached upon by them for more than statutory period and, therefore, held that the defendants failed to prove title by way of adverse possession. With the above findings, the suit having been dismissed, the defendant -appellants preferred appeal before the learned District Judge, Cuttack. The learned District Judge also dismissed the appeal confirming the findings of the trial Court. However, after closure of hearing before the lower appellate Court, the appellants filed three petitions and one of such petition is under Order 22 Rule 4 of the Civil Procedure Code for impleading one Hemalata Mohanty as a party to the appeal on the ground that during pendency of the appeal she had purchased the share of defendant No.3. In the judgment, the lower appellate Court also rejected the said petition on the ground that Hemalata Mohanty was lis -pendence purchaser. At the time of admission this Court formulated the following substantial questions of law : "1. For that the decree against a dead man is nullity in eye of law because the Respondent No.2 (Malati Dibya) died during pendency of appeal and no substitution is carried on. 2. For that the learned Lower Appellate Court failed to exercise jurisdiction by not considering the petition filed under Order 22, Rule 4 and Order -1 Rule 10 C.P.C. to implead to Lis -pendency purchaser. 3. For that the relief for encroachment should not be granted when the property is neither property described and identified nor the plaintiffs title to their purchase land is disputed as the documents filed in the suit is completely different to the plaint averments (in reference to Ext.6)."