MST. LALITA MAHANANDA Vs. SRI RAJARAM LUHAR

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge, Padampur in R.F.A. No. 32/3 of 2006-2007 confirming the judgment and decree passed by Civil Judge (Sr. Division), Padampur in C.S. No. 32 of 2005.

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

(3.) Facts necessary for the purpose are as follows:- The case of the plaintiff is that one Rajan Luhar and his brother Purna Luhar were in possession of the land appertaining to Hamid Settlement Plot No. 220 out of Khata No. 26 of village Salepali since long. The land was Government land. In the year 1972, Tahasildar Padampur initiated Encroachment Case No. 1534 of 1972 against them and in that case land measuring Ac. 2.22 decimals out of total land in plot No. 220 was settled in the name of Rajan Luhar and subsequently the Rayati patta was issued in his favour, corresponding to M.S. plot No. 295. Similarly land of about Ac. 4.37 decimals under plot No. 220 was settled in the name of Purna Luhar and he was granted with the patta. But those lands could not be recorded in major settlement in the name of Rajan and Purna and it remained in the name of the State under Avadjogya Anabadi khata with note of possession in favour of the Rajan and Purna. Rajan died leaving behind his widow Chinamali and son Balabhadra Luhar who are dead since 1998 and 2000 respectively. Thus, the land being settled in the name of Rajan and Purna, they remained as owner in possession of the same all through despite of such recording in the name of the State in the Major Settlement and during continuation of such state of affairs Chinamali, Balabhadra and Purna sold away the land of Ac. 2.55 decimals out of plot No. 295 to the plaintiff for consideration of Rs. 40,000/- and executed a registered sale-deed on 31.01.1996. It is also stated that the delivery of possession of the suit land was given to the plaintiff who came into possession of the said property as its owner and continued to remain as such. It is stated that the plaintiff and her husband had decided to settle over that suit land and for that reason they had purchased the land in suit. The plaintiff's husband working as Revenue Inspector of Paikamal Tahasil was transferred to Sohela in the year 1998. So they all had to leave Paikamal and thus, could not come to cultivate the suit land personally. For that, they had authorized and allowed one Dayanidhi Mahananda who is the sister's husband of the plaintiff to cultivate the suit land on her behalf. Accordingly, Dayanidhi cultivated the suit land. The plaintiff thereafter in the year 2001 applied for mutation of the suit land. Though there was favourable report of the Revenue Inspector with regard to her purchase and possession, however on account of her absence, the mutation proceeding got dismissed for default. Again in the year 2004 she filed another mutation proceeding however that was rejected on the ground that the transaction being prior to the publication of ROR of Major Settlement, the same cannot be corrected in the mutation proceeding. It is next stated that the defendant claiming to be a relation of Rajan Luhar creating disturbance over the suit land after the death Chinamali wife of Rajan and Balabhadra son of Rajan, the defendant in the year 2002 forcibly trespassed over the same without having any right title and interest over the suit land. The plaintiff thus claims to have acquired valid right, title and interest over the same by her purchase. It is stated that in view of the settlement of land in favour of the venders of the plaintiff being valid by issuance of patta recording of the land in the name of State in ROR of Major Settlement is of no significance and that cannot stand on the way of her title over the land in suit. Therefore, the explanation is given that the State is not a necessary party.