GAGAN BIHARI PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant in this appeal has called in question the judgment and decree passed by the learned District Judge, Khurda at Bhubaneswar in R.F.A. No. 30 of 2013, an appeal under section 96 of the Code of Civil Procedure, by which there has been remand of the suit i.e., T.S. No. 130 of 2000 to the trial court i.e. the Court of Civil Judge (Sr. Division), Bhubaneswar for fresh disposal in recording findings on all the issues afresh in accordance with law. The appellant having filed the suit , the same had been dismissed and on an appeal being filed by the unsuccessful plaintiff, the judgment and decree as impugned in this appeal have been passed. Therefore, now the present appeal under section 100 of the Code has come before this Court.

(2.) For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as assigned in the trial court.

(3.) The plaintiff's case is that his late father namely, Biswanath Pradhan was a settled Raiyat of Laxmisagar village. The suit land better described in the schedule of the plaint belonging to the defendant when was laying vacant, it was long back when he cleared the bushes standing grown over it and shortly thereafter he put up a thatched house on its north-west corner. It is said to be in the year 1952. Over the rest area since then, he grew seasonal crops. There arose a dispute amongst the family members of Biswanath and it was amicably resolved by division of the properties of Biswanath and in his possession. The suit property is said to have fallen in the share of the plaintiff being one of the sons of Biswanath. The plaintiff asserts thus to have been in exclusive possession of the suit land since the year 1967. The possession is said to be open, peaceful, continuous and without any interruption from any quarter at any point of time as its owner asserting hostile animus. It is also said that Biswanath being in possession since the year 1952 and later on the possession having exclusively flown to the hands of the plaintiff, the continuity of possession has to be treated to be from the year 1952 all through by tacking. It is further averred that he constructed two asbestos roofed house over the suit land and also to have dug a well at one place. Thus the plaintiff being in possession as above exhibiting all the elements for upward of the period of thirty years claims to have acquired title by adverse possession over the said suit land. The plaintiff being in peaceful possession of the suit land as its owner, on 05.02.2000, it is alleged that the officials of the defendant State gave threat of his dispossession from the suit land despite the note of possession being there in the not final record of right. In view of above, the plaintiff had to seek redress in the Civil Court by filing a suit with due leave under section 80(2) of the Code and upon the same being granted. The prayer in the suit is for declaration of plaintiff's right, title, interest and confirmation of possession. It is also prayed that in case of plaintiff's dispossession during the suit, a decree for recovery of possession of the suit land be passed.