SRI SATYA KUMAR PAIKARAYA (DEAD) Vs. GITA BAI

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Addl. District Judge,Khurda in RFA No. 10 of 2005, remanding the suit i.e. Civil Suit No. 188 of 2003 to the court of learned Civil Judge, Sr.Divn., Khurda for decision afresh after framing an additional issue and upon hearing the parties.

(2.) Facts necessary for the purpose are stated as under: - The appellants as the plaintiffs had filed the above noted suit for declaration of their right, title, interest and confirmation of possession along with other ancillary reliefs. It is their case that the suit land under Sabik khata No. 1399 appertaining to Sabik plot No. 39/3847 comprising an area Ac.1.640 decimals out of Ac.1.920 decimals on western side corresponding to Hal khata No. 118 appertaining to Hal plot No. 19/3019 was owned and possessed by late Krushna Mohan Pattnaik and stood recorded as such in the year 1962. After death of Krushna, his widow Netramani possessed the same. It is stated that Netramani had sold the land measuring Ac.1.920 decimals from that Sabik plot No. 30/3847 to one Gopal Chandra Pattnaik, a minor being represented by his father guardian Sarat Chandra Pattnaik by registered sale -deed dated 10.9.1997 and accordingly its possession was delivered. On 8.1.1963, Gopal Chandra Pattnaik being a minor, his father Sarat Chandra Pattnaik as his guardian sold the land to one Rama Chandra Naik by registered sale deed dated 8.1.1963 who was delivered with the possession of the land. When Rama Chandra Naik was possessing the suit land as such along with the land measuring Ac.0.280 decimals under Hal plot No. 19, he sold the same measuring an area of Ac. 1.640 decimals along with the said land of Ac.0.280 decimals to the plaintiffs by registered sale deed dated 14.12.1976. The plaintiffs claim to have been possessing the suit land since then. They also stated that although the defendant has absolutely no right, title, interest and possession over the suit land, yet she could obtain a mutation order in her favour on the ground that she had purchased the suit land from one Biswanath Mohapatra. The plaintiffs came to know about the same when there was an application for obtaining a valuation certificate for the land. It was then ascertained that the claim for the same was that one Gagan Bihari Pattnaik was the owner of the land. It was put to auction and was purchased by Biswanath Mohapatra in the year 1958 and then to the defendant in the year 1960 and accordingly its stood mutated as it had been so claimed for the purpose. They however state that the suit plot 19/3019 does not correspond to Sabik plot No. 39 but to Sabik plot No. 39//3847 which was never the subject matter of the said certificate case. So it is stated that Biswanath Mohapatra as the vendor of the defendant had no title over the suit land and defendant thus has not been clothed with the same by the so -called sale deed in so far as the suit land is concerned.

(3.) The defendant in the written statement pleaded inter alia that as per 1929 -30 settlement record, the land under plot no. 39 appertaining to khata No. 1402 measuring an area Ac. 1.916 decimals was recorded in the name of Gagan Bihari Pattnaik and that was put to auction in the certificate case bearing No. 1611 of 1954 -55 which was later on purchased by Biswanath Mohapatra on 25.11.1958 who became the absolute owner of the same. Said Biswanath Mohapatra transferred the suit land to the defendant by registered sale deed dated 6.7.1960 and having delivered possession of the same, she has been in peaceful possession as such. It is further stated that in the revised map of the year 1911 -12, plot No. 39 under khata No. 28 was a single plot comprising an area Ac. 9.776 decimals and as per 1929 -30 settlement, it was divided into four plots bearing plot no. 39 under khata No. 1402 measuring an area Ac.1.916 decimals; plot no. 39/3948 under khata no. 1400 with an area of Ac. 3.600 decimals; plot no. 39/3949 under khata no. 1401 extending to area Ac. 2.340 decimals and plot no. 39/3847 under khata no. 1399 with an area of Ac. 1.920 decimals. It is alleged that Gopal Chandra Pattnaik had managed to record his name in respect of the land under plot No. 3019 under khata no. 118 by gaining over the settlement though he had no right, title, interest and possession over the same.