PURNA CHANDRA RATH Vs. HARIBANDHU PATNAIK

JUDGEMENT

(1.) THE disputed land is 34 decimals, of nij -chas land in plot No. 1054 in khata No. 53 under mouza No. 62 in mouza Batapur in the district of Puri. It belonged to the co -sharer land lords Choudhury Gobinda Chandra Das, Choudhury Radhasyam Das, Choudhury Pitambar Das and Choudhury Ram Chandra Das. In the settlement record of rights (1923 -1931) the suit was recorded as nij -chas in the name of these 4 co -sharers (see ext. D). Plot No. 1054 with an area of 0.34 acre is one of the plots appertaining to nij -chas khata No. 53. Plaintiff's case is that there was a partition amongst the co -sharers and that the suit land k had fallen to the share of Ram Chandra Das. In execution of a money decree against Ram Chandra, the disputed property was sold. One Bauribandhu Sahu purchased the disputed land amongst other lands and obtained delivery of possession. (See sale certificate ext. 3 and writ of delivery of possession ext. 4). Bauribandhu in his turn, sold the disputed land to Mahanta Narayan Das by a registered sale deed ext. 6 on 1 -8 -1942. Plaintiff purchased the same from the chela of Narayan Das by a registered sale deed ext. 1 on 22 -7 -1964. After his purchase. The paid rent to the proprietor Kailash Chandra Samantaray, who admittedly purchased the entire touzi in execution of a mortgage decree before 1940. Prior to the vesting of the estate in 1953 he was all through in possession until he was dispossessed by the Defendant. The suit is for declaration of title, recovery of possession and for damages.

(2.) DEFENDANT No. 1, father of Defendant No. 2 died during the pendency of the suit. Defendant No. 2 alone contested. His case is that the disputed land was settled on his father in 1935 by co -sharer landlords excluding Ram Chandra by a stamp paper ext. A dated 21 -1 -1935. Kailash accepted the Defendants as permanent tenants on payment of Rs. 500 - as premium. He executed a patta ext. B dated 28 -4 -1940 in favour of Defendant No. 1. Defendants paid rent all through and even after the abolition of the estate (ext. C series). They denied partition and allotment of the suit land to the share of Ram Chandra.

(3.) THE learned lower appellate Court recorded the following findings: