BHAGABAT PRASAD MOHANTY Vs. BINOD BEHARI SAMAL

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Jajpur in Title Appeal No. 39 of 1997. The appellant as the plaintiff had filed the suit for declaration of his right, title and interest over the suit property, recovery of possession and permanent injunction. The suit having been dismissed, he had carried a first appeal under section 96 of the Code of Civil Procedure. The lower appellate court while partly allowing the appeal has allowed the suit in part declaring the appellant-plaintiff, respondent-defendant and two other daughters of Bharat, namely, Malati and Sebati to be jointly having right, title and interest over the suit land in consonance with the title and interest of their respective vendors.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) Plaintiff's case is that the suit schedule land was the purchased property of Laxmi Devi wife of Bharat and it was her stridhan property. The property is said to have been purchased by registered sale deed dated 15.11.1950 from Siba Pati and others. Laxmi died leaving her only issue Kampal who became the exclusive owner of the suit land and as such remained in possession. It is stated that said Kampal had sold the land to plaintiff by registered sale deed dated 11.08.1971 and since then the plaintiff has remained in possession of the said property purchased by him as its exclusive owner. It is explained that the scribe by way of bonafide mistake had written in the sale deed that the said property was acquired by the father of Kampal. It is his further case that Bharat, the husband of Laxmi had a concubine, namely, Mani Dibya and she was kept as such after Laxmi died. It is admitted that Bharat has two daughters through that Mani. So, it is asserted that neither Mani nor her daughters have right over the property. It is alleged that one Janaki Devi wanted to usurp the disputed land and attempted to enter upon it sometime in the year 1981, the same had given rise to a proceeding under section 144, Cr. P.C., which ultimately stood dropped and thus the attempt of Janaki failed. The plaintiff claims to be having his house at a distance of four miles from the suit land which was under enclosure. It is further stated that on 16.08.1987, the plaintiff coming near the suit land, found to his utter surprise that the foundation of the building has been made on the mid portion of the said plot. This drove him to make necessary inquiry. Then it came to be known from the defendant's that they claim to have purchased the same from Janaki on 03.06.1983. So he further enquired the matter. However, the construction was hurriedly progressed over the suit land and in spite of the request, the defendant did not vacate the same. The plaintiff claims to have mutated the suit land in his name and to be also paying rent. Thus, finally the plaintiff filed the suit.