BALARAM BHOI Vs. BABAJEE BHOI

JUDGEMENT

(1.) THE judgment dated 29th November, 2003 passed by the 1st Ad hoc Addl.District Judge, Puri in Title Appeal No.130/83 of 2002/2000 is assailed in this appeal under Order 43, Rule 1(4) of the Code of Civil Procedure by the respondent in the said appeal who was the defendant in T.S. No.188 of 1992 of the Court of the Civil Judge (JD), Nimapara.

(2.) THE aforesaid Title Suit was one for declaration of title and confirmation of possession of the plaintiffs who are the respondents in this appeal over the disputed lands and permanent injunction of the defendant who is the present appellant in respect of the said lands, and in the alternative for recovery of possession of the plaintiffs. According to the plaint averments, the suit land bearing Consolidation Plot Nos.1169 having Ac.0.05 dec. of land and No.1169/1965 having Ac.0.05dec. of land appertaining to Khata No.232 of Mouza -Ansalo under Nimapara Police -Station in the district of Puri are homestead lands. The aforesaid plots correspond to 1928 Settlement Plot No.852 with an area of Ac.0.10 dec. of land under Khata No.62. According to the plaintiffs, Gopi Bhoi, Kinei Bhoi and Bira Bhoi, all sons of one Ananda Bhoi, were jointly residing in the suit lands as Sikimi tenants and their names were recorded as Sikimi tenants in the remarks column of the ROR. Out of the said three brothers, Kinei and Bira died unmarried while living joint with Gopi. Thereafter Gopi died leaving behind him his four sons, namely, Laxman, Jairam, Sridhar and Giridhari. As it was impossible for all the aforesaid four sons of Gopi to reside on the said Ac.0.10 dec. of suit land, Laxman with his sons including the defendant shifted to another land bearing Hal Plot No.1099 which had been acquired by all the brothers (sons of Gopi) and Laxman and his sons relinquished their claim over the suit lands in favour of Jairam (Laxmans brother). Thereafter Sridhar died and as he was issueless his interest in the suit lands devolved on Jairam and Giridhari (other two sons of Gopi). It was averred that Giridhari and his son Khetramohan having relinquished their claim in the suit lands in favour of Jairam fifty years back, resided on plot No.1098 which had also been acquired by all the aforesaid four sons of Gopi. Thus Laxman and his sons as well as Giridhari and his son having lost their right, title and interest in respect of the suit lands Jairam became the exclusive owner in possession of the suit lands and Jairam also obtained a sale deed from the legal heirs of one Pankaj Sahu whose name had been wrongly mentioned in the ROR in respect of the suit lands. While matter stood thus, a proceeding was initiated under Section 145 CrPC in respect of the suit lands which was decided in favour of the defendant. It was also averred in the plaint that earlier Title Suit No.30/2203 of 1989 had been filed against the defendant in the Court of the Munsif, Puri in respect of the suit lands by the power -of -attorney holder of Jairam, namely, Hata Bhoi, who was the brother -in -law of Jairam. The said suit was however dismissed for default. It was alleged in the plant that the defendant in collusion with said Hata Bhoi got his (defendant) name recorded in respect of Ac.0.05 dec. of suit land. It is submitted by learned counsel that during consolidation operation the suit lands were exclusively recorded in the name of Jairam. Jairam having suffered from leprosy, in order to meet his medical expenses sold the suit lands on 27.6.1990 to the plaintiff by virtue of a registered sale deed and delivered possession thereof to the plaintiff. After purchasing the suit lands, the plaintiff stayed there construction a thatched house thereon. Taking advantage of the fact that Jairam was suffering from leprosy, the defendant could manage to illegally record his name in the remarks column in ROR in respect of suit plot No.1169/1965 appertaining to Khata No.232 as Sikimi tenant and then on 4.5.1992 being armed with deadly weapons and accompanied by his henchmen the defendant arrived at the suit lands, tried to demolish the thatched house raised by the plaintiff on the said lands and disturb his possession for which the plaintiff was constrained to file aforesaid Title Suit No.188 of 1992.

(3.) ON the basis of the pleadings of the parties the trial Court framed the following issues for adjudication of the dispute : -