SOMANATH MOHAPATRA Vs. DEBANANDA SAMANTRAY AND ORS.

JUDGEMENT

(1.) THE lower appellate court having rejected the Petitioner's application under Order 6, Rule 17 , Code of Civil Procedure for amendment of the plaint, the Petitioner seeks to challenge that order in this Civil Revision petition.

(2.) THE Petitioner filed O.S. No. 48 of 1979 before the Munsif, Bhubaneswar against the opposite parties praying for permanently restraining Defendants Nos. 1 and 2, opposite parties Nos. 1 and 2, to come upon the suit land. The gist of the case stated in the plaint was that one Ramachandra Babu and some others were sikimi tenants in respect of the suit land, which was described as plot No. 2480/4464 under sikimi Khata No. 14 in mouza Bhubaneswar, Dist. Puri having an area of Ac.0.518 decimals. While remaining in khas possession of the property, the said sikimi tenants alienated their interests in the suit property to Defendant Nos. 3, 4 and 5 opposite parties 3 to 5 for legal necessity and gave delivery of possession to the purchasers. Thereafter Defendants 3 to 5 remained in possession of the suit property and paid cash rent to the ancestors of Defendants 1 and 2 and thereafter to Defendants 1 and 2. In 1962 settlement records, the names of Defendant Nos. 3 to 5 (opposite parties 3 to 5) were recorded as sikimi raiyats. The Plaintiff -Petitioner claimed to be tenant under Defendant Nos. 3 to 5 and asserted that he was in possession of the property in such capacity. An attempt was made by the superior landlord to oust the Plaintiff from the property by setting up one Mahendra Mohapatra to file a case under Section 36 -A, O.L.R. Act. The said application was rejected by the Revenue Officer. Thereafter Defendant Nos. 1 to 2 opposite party Nos. 1 and 2 threatened to dispossess the Plaintiff from the suit land. On these averments the Plaintiff sought for a permanent injunction restraining Defendants 1 and 2 not to create any disturbance in cultivation of the suit land and further to injunct the said Defendants from coming upon the suit land.

(3.) THE trial court on a consideration of the materials placed before it dismissed the suit holding inter alia, that the sikimi right was neither heritable nor transferable in the area and that the Plaintiff failed to establish the relationship of Ramchandra Badu with Madhu Badu and Lokanath Badu. Referring the document under Ext. 3, the trial court, observed that though the Plaintiff depends on the averments in the said document to bring home the fact that Ramchandra Badu acquired sikimi interest over the suit plot through inheritance and transfer, the said fact was neither pleaded in the plaint nor specific oral evidence in this regard was adduced by the Plaintiff.