GITANJALI PADHI Vs. HARI SAHOO AND OTHERS

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 17.8.1993 and 7.9.1993 respectively passed by the learned Sub-Judge, Jagatsinghpur in T.A.No.3/81 reversing the judgment and decree dated 9.12.1988 and 5.1.1989 passed by the learned Munsif, Jagatsinghpur in Title Suit No.101 of 1985.

(2.) Respondent nos. 1 and 2 as plaintiffs instituted the suit for permanent injunction. The case of the plaintiffs is that the plaintiffs and defendant nos. 2 and 3 are the members of one family. The suit property was purchased by them along with defendant nos. 2 and 3 jointly. There was a dwelling house on the suit property and they lived there. In the devastating flood of the year 1982, the house standing on the suit property collapsed. Thereafter the plaintiffs shifted to their original ancestral house with a plan to construct a new house again on the suit land. While the matter stood thus, defendant nos. 2 and 3 sold the property to defendant no.1, who is a stranger to the family. With this factual scenario, they instituted the suit. According to the plaintiffs, during pendency of the suit, defendant no.1 forcibly took possession of a part of the suit property. Thereafter they prayed for a decree of mandatory injunction.

(3.) Pursuant to issuance of summons, defendant no.1 filed her written statement. Defendant nos.2 and 3 had also filed their written statement. But then they were set ex parte. The plea taken in both the written statements are almost the same. It was pleaded by the defendant nos. 2 and 3 that the old thatched house, which was standing over the suit property, was never occupied by the parties. The said house was collapsed in the year 1970. In the said year the plaintiffs and defendant nos. 2 and 3 effected a partition of the suit property in which defendant nos. 2 and 3 were allotted with A0.13 decimals and 5 links of land and the plaintiffs were allotted A0.10 decimals and 5 links of land. After partition, they sold the allotted share to defendant no.1 by means of a registered sale deed dated 17.4.1985 and delivered possession. Thereafter defendant no.1 constructed a residential house over the same and is residing therein. The plaintiffs are not in possession of the suit property. Defendant no.1 took an alternative plea of adverse possession so far as her purchased property is concerned.