GOURANGA GUMANSINGH Vs. RAMARAYA SINGH AND OTHERS

JUDGEMENT

(1.) The appellant in this appeal calls in question the order dated 18.11.2004 passed by the learned Ad hoc Addl. District Judge (FTC), Khurda in Title Appeal No. 5/9 of 2004/2002. By the said order, the learned Ad hoc Addl. District Judge having set aside the judgment and decree passed by the learned Civil Judge (Jr.Divn.), Khurda in T.S. No. 60/141 of 2001/1998 decreeing the suit granting the reliefs to the plaintiff-appellant has remitted the suit to the said court to give opportunity to the parties to adduce evidence, if any, in respect of the respective possession of the land pursuant to the compromise decree passed in O.S. No. 27/73 and recording a finding on issue no. 4 afresh, in further directing for consideration of the alternative case of the defendant-respondents as regards their claim of perfection of title by adverse possession by framing an issue to that effect, if required, and giving a finding thereon and accordingly to dispose of the suit.

(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.) The plaintiff's case is that the land under Sabik holding 208 corresponding to Hal holding 230 stood jointly recorded in the names of Lokanath Paikaray, Rajendra Paikaray, Bira Samantaray, Arakhita Samantara, Mahadev Samantara, Madhab Gumansingh, Jadu Gumanshigh and Bansidhar Gumansingh as per the settlement of the year 1931. Rajendra Paikaray, the paternal grand-father of defendant no.7, Gajendra Raysingh the common ancestor of defendant nos. 1 to 6, Narasingh Gumansigh, the common ancestor of the plaintiff and defendant nos. 8 to 10 and Udhab Samantaray, the paternal grand-father of Mahadev Samantaray were the four co-owners of the said property. In an amicable partition amongst them, the suit property along with other properties under Khata No. 208 came under separate possession of the said co-owners and accordingly separate note of possession found mentioned in the record of right of the year 1931. The suit land is said to be under the exclusive possession of Bira Samantaray, Arakhita Samantara and Mahadev Samantara who are the agnatic brothers with Udhab as their common ancestor. Said Udhab Samantaray had three sons namely, Bira Samantaray, Sudarsan Samantaray and Dusasan Samantary. Mahadev is the only son of Dusasan, Arakhita is the only son of Sudarsan and Nila Dei is the only daughter of Bira Samantaray. It is said that all of them were living jointly on the said land till the death of Udhab, Dusasan, Sudarsan and Bira. Arakhita is said to have died as a bachelor and Sudarsan's branch is said to have been extinct. It is also said that Nila, the only daughter of Bira being given in marriage and Bira having died prior to 1950, she had no share in the suit property. Thus, Bira's branch is also said to have been extinct. Mahadev the only son of Dusasan thus came to possess the suit land as its exclusive owner. It is said that during settlement of the year 1964, the suit property as also other property although were jointly recorded in the names of Lokanath Paikaray, Doli Raysingh, Bhima Raysingh, Nila Dei, Mahadev Samantaray, Madhu Gumansingh and Gaurang Gumanshingh, there was note of possession in favour of Mahadev in respect of the suit land corresponding to plot no. 984 exclusively. Further case of the plaintiff is that he has purchased the said land from Mahadev Samantaray by registered sale deed dated 11.6.90 for valuable consideration and accordingly mutated the same in his name. The said purchase is said to have been with the knowledge of the defendants and in the transaction, Krushna Chandra Paikaray, son of defendant no. 7 was a witness. The plaintiff claims to have been in possession of the suit land since then and accordingly, in the Hal settlement of the year 1998, it is said to have been recorded in his name. The plaintiff further states that the land under plot no. 985 belonging to defendant nos. 1 to 6 standing recorded jointly in the names of their father Doli Rayasingh and Bhima Raysingh adjoins the suit land. Similarly, the land under plot no. 983 adjoins the suit land on its west which belong to the plaintiff and his nephew, defendant no.8 and in respect of that note of possession stands in the name of grand-father of defendant no. 8 only. Taking advantage of the absence of the plaintiff, the defendant nos. 1 and 2 threatened to raise a thatched house over the suit land for which a proceeding under Section 144 of the Code of Criminal Procedure was initiated and an order of restraint had also been passed therein. It is alleged that on 30.6.98, the defendant nos. 1 and 2 with the help of defendant nos. 3 to 6 forcibly put a thatched house over the suit land, about which the local police was informed. When the matter stood thus, the defendant nos. 1 to 4 together initiated objection case in the Rent Camp at Atharang to record their names in respect of the suit land which stood exclusively recorded in the name of the plaintiff under plot no. 1130 alleging therein that they had purchased the suit land by registered sale deed dated 11.3.64 and 22.5.67. The plaintiff asserts that such sale deeds were never executed by Mahadev. The suit property is also said to have been the subject matter in another suit i.e. O.S. No. 27/77 wherein Mahadev has been declared to be the exclusive owner in possession of the same. The above moves of the defenedants are said to be wholly for the purpose of grabbing the suit land. So ultimately, the suit came to be filed.