PRAFULLA KU SAMANTARAY Vs. BIDYADHAR MAJHI

JUDGEMENT

(1.) The judgment and decree passed by the learned District Judge, Phulbani in T.A. No. 7/85 upholding the judgment and decree of learned Sub-ordinate Judge, Boudh in Title Suit No. 1 of 1983 (I) is under challenge in this second appeal.

(2.) Bidyadhar Majhi, the deceased-respondent No. 1 as the sole plaintiff, filed Title Suit No. 1/1983 (I) before learned Sub-ordinate Judge, Boudh for declaration of his title over the suit land and the kucha house standing thereon (Schedule 'A' Property), recovery of possession of the same and for a direction to defendant Nos. 1 to 5, (who are the present appellants) to remove the additional structure made by them on the suit land. The case of the plaintiff in nut shell was that one Musmut Sambari was the owner and person in possession of the suit land in Khata No. 222 of Boudh town and she sold that land with a kucha house thereon, to the plaintiff by means of a registered sale deed on 8.1.1955 and delivered possession of the property to the plaintiff. The plaintiff was working in police department and was moving from place to place on transfer. He therefore, allowed deceased-defendant No. 6-Natabar Pradhan, who was a friend and practising advocate of Boudh, to raise kucha rooms on that land and use the same for his professional purpose temporarily with an understanding that defendant No. 6 would vacate the suit land and house whenever plaintiff would ask for it. Deceased-defendant No. 6 constructed four kucha rooms on that land and used the same. When the matter stood thus, defendant No. 1, who was a friend of defendant No. 6, retired from service and came to Boudh with his wife and children, defendant Nos. 2 to 5. Since he had no place to stay, he requested defendant No. 6 for shelter and defendant No. 6 allowed him to occupy three of the four kucha rooms on the suit land on condition that he would vacate those rooms as soon as the plaintiff would retire from service and would ask for possession of the land and house. Accordingly, defendant Nos. 1 to 5 resided in three of the rooms on the suit land. On his retirement in 1971 the plaintiff came back to Boudh and resided in his house situated near the Suit land. When he asked back his suit land, defendant No. 6 told that defendant Nos. 1 to 5 were there in three rooms with his permission and that they would vacate the same. With some understanding defendant Nos. 1 to 5 were allowed to continue in those three rooms on permissive basis, but in 1977 defendant Nos. 1 to 5 suddenly raised a kucha wall to obstruct the entry of the plaintiff to the fourth room and claimed right title over the suit land and the house standing thereon. Finding no other way, the plaintiff, filed the suit seeking the aforesaid relief.

(3.) Defendant Nos. 1 to 5 in their joint written statement while denying the right title of the plaintiff pleaded inter alia that defendant No. 1 acquired the suit land and kucha house standing thereon from Musmut Sambari for Rs. 85/- in the year 1951 by means of an oral conditional sale and took over possession of that property. but because defendant No. 1 was in a transferable service in Co-operative Bank, he allowed defendant No. 6 who was friendly to him, to use the suit land and kucha house standing thereon. It was further pleaded that on retirement of defendant No. 1, defendant Nos. 1 to 5 took back the suit land and kucha house thereon from defendant No. 6 and continued to live therein. Defendant Nos. 1 to 5, thus, claimed title over the suit property through the oral sale and alternatively, by way of adverse possession. Deceased-defendant No. 6 filed written statement supporting the case of the plaintiff. During the pendency of the suit when he died, his legal heirs who were substituted in his place also supported the case of the plaintiff.