SEIKH SARDAR Vs. EXECUTIVE OFFICER BERHAMPUR

JUDGEMENT

(1.) THE plaintiff filed a suit against the defendant/ respondents for permanent injunction restraining the defendant -respondents from demolishing the disputed thatched house and from interfering with his peaceful possession. In the plaint the plaintiff has claimed that the land on which the disputed thatched house stands is not the land of the Municipality. The defendant -respondents have contested the suit inter alia claiming mat the disputed site on which the disputed matched house stands is a part of street survey field No. 212 of Ward No. 3 (old) of the Municipality and forms part of the Municipal road. The defendants have also denied any right, title or interest of the plaintiff over the suit site.

(2.) THE basis of the claim of the plaintiff is that the disputed site is a part of plot Nos. 1046 and 1047 of village Madhabapur of Berhampur Tahasil. The defendant -respondents disputed the said allegation and have asserted that the disputed sits does not appertain to or form part of those plots.

(3.) THE lower appellate Court reversed the decision of the trial Court inter alia holding that the suit was not maintainable because notice as required under Section 349 of the Orissa Municipal Act. 1950 was not sent and the State of Orissa was not made a party. it appears that the lower appellate Court has failed to appreciate the issues at controversy and has adopted an erroneous and misconceived approach.