JOSHOBANTA BARAL & ANOTHER Vs. GOLEKHA BARIK

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Jajpur in R.F.A. No. 29 of 2005 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Jajpur in Title Suit No. 20 of 1996.

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

(3.) Plaintiffs case is that the suit land as per the current record, stood recorded in the name of Baraju Barik, son of Mani Barik; Bira Barik and Hari Barik, both sons of Achyut Barik; Gadei Barik, and Kangali Barik sons of Mahani Barik and Muli Barik, son of Jai Barik each having equal shares. It is stated that Mani Barik was the common ancestor who died leaving behind four sons, namely Achhyuti, Nisakar, Mahani and Baraju who are all dead. Mahani died leaving behind two sons Gadei and Kangali. The plaintiffs are the sons of Kangali. It is stated that the suit holding i.e., C.S. Holding No. 161 had never been partitioned by metes and bounds amongst co-sharers and the parties are in possession of the same in approximation to the extent to their shares. The suit land is said to be the land around the house and as such is the undivided qua-dwelling house. This house at the time of suit although stood raised to the ground nonetheless the plaintiffs claim to have not totally abandoned the idea of constructing the house over the said land in future. It is claimed that there is a well over the suit land which acts as the source of water for the members of the family. The plaintiffs claim that when they have collected building materials over the suit land on the northern portion of the same adjoining the public road, the defendants put a cabin on the north-east corner on the side of the road by encroaching some portion of the suit land. It is alleged that they threatened the plaintiff to take away the bricks staked over the suit land. It is also stated that on 20.01.1996, the defendants threatened to enter upon the suit land which was prevented by the timely action and protest by the plaintiffs. At that time, although the defendant disclosed to have purchased some portion out of the suit land, however on demand, they could not produce the documents. It is further stated that defendants admitting the suit land to be the undivided homestead land of the parties have purchased A0-00-03-12 biswas of land from Kanhu Barik, Krupasindhu Barik both sons of Gadei and Dambaru Barik son of Hari Barik by registered sale deed dated 18.04.1968. Since the threat of dispossession persisted, the suit had to be filed.