BASUDEV BEHERA AND OTHERS Vs. PANKAJ BEHERA

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Phulbani in R.F.A. No. 08 of 2012. By the said judgment and decree, the learned District Judge had set aside the judgment and decree passed by the learned Civil Judge (Jr. Division), G. Udaygiri in T.S. No. 04 of 2001 and has remanded the suit to the said court with a direction to consider the recall petition of P.W. 1 for clarification of error as pointed out therein, allow the appellants (defendants) to give rebuttal evidence, if any,and after admitting the Survey Knowing Commissioner's report in evidence to hear the matter on the issues on the basis of all the materials on record and pass judgment and decree afresh in accordance with law.

(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 trial court.

(3.) The case of the plaintiffs is that he with his brothers are the absolute owners in possession of the suit land which was in possession and enjoyment of plaintiff and his brothers. It is said that the defendants are the owners in possession of the land which adjoins the suit land on its west. It is further alleged that the defendants with an ulterior motive made a green fencing placing the foundation from east to west of the suit land constructing a thatched house. The plaintiff immediately initiated a proceeding under section 144 Cr.P.C. against the defendants and thereafter has come up with the suit. The defendants besides challenging the maintainability of suit on various technical grounds have averred that the plaintiff have never possessed the suit land at any point of time and it is they who were and are in possession of the suit land. They state that in the proceeding before Executive Magistrate under section 145 Cr.P.C. their possession over their own land plot No. 1810 was declared and the boundary dispute between the parties were amicably settled after due demarcation as per the report. So, they claim that absolutely no cause of action survives for filing the present suit. It is again stated that the father of the defendants had made pucca foundation over their own land under plot No. 1810 which adjoins the suit plot No. 1809 on its west about 30 to 32 years prior to the last settlement operation and that too it was with the knowledge of the plaintiff and all other concerned. So, they claim to be in khas possession of said land since then as its owner which was never objected to by the plaintiff. This possession is claimed to be open, peaceful, continuous and in exercise of rights of ownership.