KHALIL NAHAK Vs. HADU NAHAK

JUDGEMENT

(1.) This is an appeal against the order of the learned Subordinate Judge, Aska passed in T.A. No. 19 of 1982 confirming the judgment and decree of the learned Munsif, Aska in T.S. No. 15 of 1980 dismissing the suit of the plaintiff appellant against the defendant-respondent.

(2.) Plaintiff-appellant's case was that he purchased the suit land measuring 6 cubits north to south, 30 cubits east to west standing on Survey No. 115/11 in patta No. 35 of village Nuagam on 8-9-1976 from one Sahadev Nayak, who had purchased that land from one Bhobani Nayak on 18-5-1965 in the name of his wife Late Kishori Deby by way of benami transaction. The defendant- respondent whose house adjoins the suit site encroached into the suit land measuring an extent of 4 x 30 cubits in spite of protest of the plaintiff appellant. The plaintiff accordingly filed the suit for a direction to the defendant-respondent to vacate the suit land, to restore the suit site to its original condition at his own cost and also not to enter upon or otherwise interfering in any way with the possession and enjoyment of the plaintiff over the suit land. Defendant-respondent in his written statement took the stand that the sale deed dated 8-9-1976 relied on by the appellant is a collusive one and that the land described in the sale deed does not relate to the suit land. The respondent's specific case was that the suit land originally belongs to one Nityananda Nayak, who after taking Rs. 250/- from him gave delivery of the suit land to him and since then he is in possession of the suit land, which situates on Survey Plot No. 115/11 in Patta No. 35. Respondent also claimed that the legal heirs of Nityananda Nayak had never any objection about his possession over the suit land and on 21 -8-1980 the sons of Nityananda executed a sale deed in his favour in respect of the suit land acknowledging receipt of Rs. 250/- by their father 22 years back. The respondent further pleaded that the appellant subsequently got rectification deed executed on 3-7-1980 with a view to grab the suit land although he had no right, title and interest over the same.

(3.) Considering the pleadings of the parties, learned Munsif, Aska framed the following three issues.