ADIKANDA SWAIN Vs. DEBARAJ MISHRA

JUDGEMENT

(1.) The appellant in this appeal has called in question, the judgment and decree passed by the learned Additional District Judge, Bhanjanagar in RFA No. 16 of 2003. In the said appeal, the judgment and decree passed by the learned Civil Judge (Junior Division), Bhanjanagar in T.S. No. 45 of 2001 have been set aside. The trial court had dismissed the suit and counter claim. The lower appellate court has decreed the suit declaring that the plaintiff has legal right to use the land under plot no. 834/2317 adjoining to his house standing over the land under plot no. 2341; further declaring that defendant no. 1 has no right to block the same by making any construction in any manner. Mandatory injunction has also been issued directing the defendant no. 1 to demolish and remove the construction made by him over the suit plot and on failure, the plaintiff is given the liberty to get it done through the process of law. The defendant no. 1 has also been restrained from making any further construction over the suit plot.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the court below.

(3.) The plaintiff's case is that the suit land under plot no. 834/2317 under Khata no. 409 stands recorded in the name of State under Rakhita Khata. It measures an area of AC. 0.25 decimals. It is further claimed by the plaintiff that he was in unauthorized occupation of the said land since the year 1983 as can be seen from the ROR of the year 1983 i.e. Ext. 1. Further case of the plaintiff is that his own homestead land is situated to the adjacent west of the suit plot and that he had purchased in the 1971 from one Dandapani Rout for valuable consideration. When he purchased the land, it was 12 cubits X 100 cubits in size. Subsequently, the plaintiff purchased the land in the name of his wife which measures 5 1/2 cubits X 100 cubits adjoining his said purchased land by registered sale-deed of the year 1976 for valuable consideration. According to the case of the plaintiff to the east of the suit plot/land there lies the PWD road and disputed suit plot is thus situated in between his house and PWD road. So, he claimes to have right to enjoy the suit plot from every corner of his own land to go to the road. The plaintiff claims to be in peaceful, continuous and open enjoyment of the suit land since 1971 and only in the year 1997 defendant no. 1 forcibly laid foundation over the same putting up permanent structure and it is just in front of his house. Plaintiff states that defendant no. 1 has no manner of right, title, interest and possession over the suit land and in case he makes the construction over there, the plaintiff would be put to immense difficulty in using his own land as well as suit land so as pass over it to approach and go over to the PWD road. The plaintiff, therefore, prayed for declaration of his legal status to use the suit plot adjoining to homestead plot no. 2341 as such for having access to the road from his house plot and that the defendant no. 1 or his successors to have no right to block the land under plot no. 834/2417 by making any sort of construction as he has no right to do so by infringing the right of the plaintiff and cause deprivation to him by not allowing him to exercise such right.