HIRADHAR PATI Vs. SMT. SUMATI BEHERA & OTHERS

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Bargarh in R.F.A. No.11 of 2003 remanding the suit, i.e., Title Suit No.19 of 2001 to the Court of the learned Civil Judge (Jr. Division), Bargarh after setting aside the judgment and decree passed by the learned Civil Judge (Jr. Division), Bargarh in decreeing the suit filed by the present appellant as the plaintiff declaring his right, title and interest over the suit land and entitling him to get the vacant possession of the suit land from the defendant -respondents, for reassessment of evidence on record as regards issue nos.2,3 and 4 referring to the observations made therein.

(2.) Facts necessary for the purpose of this appeal are as under: Plaintiff stated that the suit land originally belonged to one Krushna Chandra Khamari, who was the owner in possession of the same. He sold a portion of land measuring Ac.0.03 dec. to the defendant no.3 under registered sale deed dated 26.03.1981 and put him in possession of the same. Defendant no.3 in turn sold the same to the plaintiff by registered sale deed dated 09.12.1982 and delivered possession of the said land to him. Thus, the plaintiff claims to have become the owner of the suit land and in possession of the same on the strength of his purchase. It is further stated that said Krushna Khamari also sold Ac.0.03 dec. of land from M.S. Plot No.2177 and Ac.0.01 dec. from M.S. Plot No.2195 in total Ac.0.04 dec. to one Kanhai Padhan by registered sale deed dated 27.02.1981. The plaintiff again claims to have purchased the said 4 dec. of land from that Kanhai Padhan by registered sale deed dated 09.12.1982. Thus his case is that having purchased the suit land on two occasion from above two vendors, he remained in possession of the entire Ac.0.07 dec. of land described in schedule 'A' of the plaint which is the subject matter of the suit. It is next stated that the defendant no.1 having no right, title, interest and possession on a fine morning encroached upon the land to the extent of Ac.0.03 dec. and defendant no.3 encroached upon the land to the extent of Ac.0.01 dec. and constructed a kachha house with tile roof over the same. The plaintiff having noticed such unauthorized construction when raised protest and asked them to leave the possession of the land, the response came to the effect that they have purchased the land from defendant no.3 and accordingly to have mutated the same. So, the suit has been filed.

(3.) The defendant nos.1 and 2 while traversing the plaint averments besides raising the technical pleas as regards lack of cause of action, the suit being undervalued, lack of pecuniary jurisdiction of the court to try the suit, specifically raised that defendant no.2 had purchased Ac.0.01 dec. of land from out of M.S. Plot No.2195 from the original owner Krushna Khamari under registered sale deed dated 24.04.1979 and continued to remain in possession as it was earlier also in his possession. Krushna Khamari having detected the possession and defendant no.2 had so executed the deed. It is also stated that defendant no.2 has been in possession of excess land of Ac.0.01 dec. since the year 1984 to the knowledge of the plaintiff and such possession is said to be open, peaceful and continuous, hostile to the interest of the plaintiff. Over this land, he advances his claim of acquisition of title by adverse possession claiming further that it has been so mutated in his name. It is next stated that defendant no.3 after purchase of the suit land from Krushna Khamari on 26.02.1981 executed a deed of transfer in respect of land measuring Ac.0.03 dec. in favour of defendant no.1 by registered sale deed in the year 2000 since that defendant no.1 was earlier in forcible possession of the suit land. The land is said to have been mutated accordingly. They challenged the claim of the plaintiff over the suit land on the strength of purchase as baseless, further pleading that the plaintiff had never possessed the suit land at any point of time.