KRISHNA CHANDRA NAIK Vs. NILAKANTHA MOHANTY

JUDGEMENT

(1.) This appeal is by the defendants against the confirming judgments of the Courts below decreeing the plaintiff's suit for declaration of title and confirmation of possession.

(2.) The dispute relates to an area of Ac. 0.040 decimals in Puri town under Khata No. 513 /2045 comprising under plot No. 513 measuring Ac. 0.010 decimals and plot No. 513/2045 measuring 0.030 decimals This admittedly stood recorded in the name of Mukta Bewa in the settlement of 1899 as a Sthitiban tenant under the deity Lord Jagannath and the land was the Amrutamonehi land of the said deity. Plaintiff claims ownership and possession on the basis that he is the paternal great grand son of Mukta Bewa, Defendants claim ownership and possession by oral purchase for a consideration of Rs. 50/- from said Mukta Bewa in the year 1928. Alternatively they claim to have acquired title by way of adverse possession. The lower Court found the plaintiff to be the descendant of said Mukta Bewa in the line of succession and, therefore, held that the plaintiff has title to the suit land. In regard to the adverse possession of the appellants the lower Court held, there was no sufficient evidence to such adverse possession. Both the findings of the Lower Court were upheld by the lower appellate Court.

(3.) Two substantial questions of law were raised by Shri A. K. Mishra, learned counsel for the appellants-defendants. Firstly, the disputed land being the subject matter in the earlier suit No. O.S. 201 of 1967 and the finding in that suit being that the present defendants were in possession of the disputed land as occupancy tenants, and further, plaintiff herein having laid no claim over this property of Mukta Bewa, the entire claim in the present suit is barred by the principle of res judicata; and secondly, in the absence of finding that the plaintiff was in possession of the disputed land, it was an error on the part of the Courts below in decreeing the plaintiff's suit. Shri A. K. Sahu, learned counsel for the respondent-plaintiff, controverting the above submissions of Shri Mishra, submitted that the earlier suit by plaintiff Balaram Das having been dismissed, the present plaintiff who was defendant No. 4 in that suit could not have challenged the findings and, therefore, question of res judicata would not arise.The rival contentions need examination.