SUKRI NAIK Vs. SMT. SHANTILATA PRADHAN & ANOTHER

JUDGEMENT

(1.) This is an appeal from the judgment and decree passed by the learned Addl. District Judge, Champua in RFA No.28/50 of 2011-08 dismissing the same and thereby confirming the judgment and decree dated 24.5.2008 and 26.6.2008 respectively passed by the learned Civil Judge (Senior Division), Champua in Title Suit No.9 of 1997-I.

(2.) Defendant no.2 is the appellant against the confirming judgment. Respondent no.1 as plaintiff instituted T.S. No.9 of 1997-I in the court of the learned Civil Judge (Senior Division), Champua praying, inter alia, for declaration of right, title and interest over the suit schedule land, permanent injunction and mandatory injunction to demolish the house of the defendants. The case of the plaintiff is that she has purchased Ac.0.09 dec. of land appertaining to Plot No.169 area Ac.0.08 dec. and Plot No.160 area Ac.0.01 dec. under Khata No.12/12/202 of Mouza-Champua from one Smt. Basanti Kumari Pattanaik by means of a registered sale deed No.160 of 1992 for a valid consideration on 17.2.1992. The same corresponds to Hal Plot No.1435/2236 under Hal Khata No.342 area Ac.0.10 dec. After sale, possession of the land was duly delivered to her by the vendor. She is in possession of the same. She stacked boulders over the suit land for construction of boundary wall. On 14.12.1994, the defendant suddenly started construction of a house over the south-eastern corner of the suit land. Thereafter, her husband filed a petition under Sec. 144 Crimial P.C. before the Sub-Collector, Champua, which was registered as Criminal Misc. Case No.470 of 1994. The defendant was restrained from disturbing her peaceful possession over the suit land. But then, the defendant forcibly constructed a mud house over an area of Ac.20' x 15' leaving 5' x 15' western side and 10' x 15' over eastern side of the aforesaid land. It is further stated that she has constructed a boundary wall over an area of Ac.0.705 dec., but due to the obstruction of the defendants, she could not include the suit land within the said boundary. In spite of repeated requests by her, the defendants did not vacate the suit land. On eastern side of the suit land, which is vacant, the defendants put bricks to construct a house and a wall on the western portion of the suit land. They also started removing earth to lay foundation to which she protested. The defendants did not pay any heed to the same.

(3.) Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants is that the alleged transaction between the plaintiff and Basanti Kumari Pattanaik is not valid in law. The house situated on the south-western portion of the suit land had been constructed by Basudev Naik, the father-in-law of defendant no.1. The father of defendant no.2 was in possession of the suit schedule land for the last 40 years. The plaintiff trespassed over a portion of the suit plot lying vacant on the strength of the fake sale deed executed in her favour by Smt. Basanti Kumari Pattanaik who has no right, title and interest over the suit plot. She has forcibly constructed a boundary wall over Ac.0.07-1/2 dec. of the suit plot illegally with the help of the local police and court process. The defendants are not aware of the fact that Khata No.12/12/208 Ac.0.09 dec. consisting of Plot Nos.159 and 160 was recorded in the name of Sanatan Mohanty and that said Sanatan Mohanty transferred the suit land in favour of Basanti Kumari Pattanaik vide R.S.D No.542 of 1972. The entire Ac.0.09 dec. of land originally belonged to one Rama Chandra Naik, who happens to be the relation of Basudev Naik. Rama Chandra Naik orally gifted the said land to Basudev Naik about 40 years back. Sanatan Mohanty has constructed his house near the suit land. Basudev Naik constructed the house near the suit land and was in possession of entire Ac.0.09 dec. of land peacefully and uninterruptedly to the knowledge of all. After marriage of defendant no.2 with defendant no.1, both of them are residing in the said house. It is further asserted that the defendants have acquired title over the same by way of adverse possession.