MADHAB JENA @ MADHABANANDA JENA Vs. INDIRA TRIPATHY

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Bhubaneswar in Title Appeal No. 41 of 1990 confirming the judgment and decree passed by the learned Munsif, Bhubaneswar in O.S. No. 12 of 1986 -I. The present appellants are the unsuccessful defendants all through.

(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 court below.

(3.) The case of the plaintiff is that the suit land with other lands originally belonged to Raghunath Mohapatra, Biswanath Mohapatra and Kedarnath Mohapatra and as such they were the recorded tenants being the owners in possession. It is stated that after the death of Kedarnath his widow Padmini and daughters namely, Sundarmani and Gayatri illegally sold away some lands to the outsiders who have got such purchased land recorded in their names in the last settlement though they were never in possession. Late Raghunath Mohapatra and late Biswanath Mohapatra had filed the suit i.e. O.S. No. 139 of 1962 -I in the Court of Sub Judge, Bhubaneswar which was finally disposed of on 31.01.1967. It being the suit for partition, the final decree being drawn, the civil court commissioner had also delivered the possession of the land to the parties in so far as their allotted properties are concerned. As per the said decree, Biswanath, the father of the plaintiff got Ac0.2.234 1/2 decimals which is the middle portion of the land under sabik plot no.22 and he possessed the same. On his death, his widow Malati, sons Ramakanta and Pruthikanta, and daughters Geeta, Mitra and Indira possessed the said land as his legal heirs and successors. It may be stated that the daughter of Biswanath, namely Indira, the plaintiff in the suit from which this appeal has arisen claims that on 19.06.1974, her mother and two daughters executed a gift deed in her favour in respect of the land measuring Ac0.60 decimals which had fallen to the share of Biswanath wherein they had the interest which precisely is the subject matter of the present suit. In the said gift deed, the sisters of the plaintiff, namely Geeta and Mitra had given their consent and the said gift was acted upon, and accepted and the possession of the land in question being delivered to the donors, the plaintiff claims to be in possession of the same. In the current settlement the land having been recorded in her name, she is also paying rent and has been staying over it by constructing two asbestos roofed rooms. For the said rooms holding tax is said to have been assessed by the Municipality, which she is paying. It is further alleged that Kamala Jena, defendant no.3 who is the wife of defendant no.1 and mother of defendant no.2 has purchased the said land adjoining the suit land on its south from the legal heirs and the successors of Kedarnath and she was a party in the partition suit i.e. O.S. No. 139 of 1962 -I for that reason. It is next stated that in the year 1973, defendant no.3 sold away his entire land to one Kulamani Biswal. The land was adjoining the suit land on its southern side. It is alleged that the defendants though have no manner of right, title, interest and possession over the suit land yet taking the advantage of absence of the plaintiff as she was residing at Mumbai forcibly entered upon the suit land and constructed the room over it which compelled the plaintiff to file the suit.