DAITARI MOHAPATRA Vs. UCHHAB SAHU AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal against the concurrent decisions of the Courts below arising out of a suit for declaration of title, confirmation of possession or in the alternative for recovery of the same and for injunction.

(2.) PLOT number 92 comprising an area of 27 decimals in Khata No. 329 in the town of Cuttack stood recorded in the name of Anthua Gopal Thakur with one Aparti Das 808 Marfatdar. The landlords of the aforesaid property executed a permanent patta by a registered document (ext. I) on 9 -2 -1932 in favour of Manik Dei, wife of the present Plaintiff. Manik filed Title Suit No. 6739, in the court of the second Munsif for declaration of her title to the said property adding the present Defendants 1 to 6, as Defendants 1 to 6 in that suit and the deity Anthua opal Defendant No. 7 represented by the Marfatdar Aparti Das was also Defendant No. 7 and the landlords figured as proforma Defendants 8 to 10 in the suit. When that suit came up for hearing, a compromise petition (ext. 3) was filed on 28 -2 -1940 by the parties wherein the Plaintiff gave up her claim to four decimals out of the suit property including a Dolamandap and be Defendants. acknowledged the Plaintiff as having title to the rest of 23 decimals and in terms of the said compromise a decree (ext. 6) was passed between the Plaintiff and Defendants 1 to 6, the deity, Defendant No. 7 having been set down ex -parte. In pursuance of the said decree delivery of possession was given on 2 -9 -194l, by the writ of delivery of possession (ext. 7).

(3.) AFTER filing of the present suit, Defendants 8 and 9 made applications to be added as Defendants to represent the body of villagers. The defence case is that the suit -property is absolute debottar of the deity, Defendant No. 7, and from time immemorial it is being used as a festival round of the deity and also as a public place by the people of Thoria Sahi, who have acquired a title to it by prescription. The Marfatdar Aparti Das was appointed by the people of the locality to perform the sebapuja 05 the deity and he was recorded as such in the current settlement records. The said Aparti Das having left the village for about thirty years, the villagers themselves are now acting as Marfatdars doing seba puja of the deity and Defendants 1 to 6 were never the Marfatdars. The Plaintiff collided with Defendant No. 6 and managed to get a compromise decree and the compromise petition was signed by Defendant 1 and 3 alone without knowing its contents, and as such, the said decree was a fraudulent one not binding either on the deity (Defendant No. 7) or the villagers of Thoriasahi. Ext. 7, the writ of delivery of possession was a mere paper transaction and the Plaintiff never obtained any possession which remained all along with the Defendants.