KALABATI SAHU Vs. KAMALA DEI @ KAMALA SAHU

JUDGEMENT

(1.) The appeal has been filed calling in question, the judgment and decree passed by the learned District Judge, Bolangir in Title Appeal No. 27 of 1994 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Bolangir in Title Suit No. 09 of 1965. The respondents as the plaintiffs had filed the suit against the appellant defendants for declaration of their right, title and interest over the suit land, delivery of possession and further claiming the mesne profit. The suit having been decreed, the unsuccessful defendants had carried an appeal and that having yielded no fruitful result, they have filed this appeal under Section 100 of the Code of Civil Procedure.

(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 Court below.

(3.) The plaintiffs' case is that they had filed the suit i.e. Title Suit No. 25 of 1945 in the Court of Munsif, Bolangir for declaration of their title and recovery of possession over the land measuring Ac. 12.73 decimals which included the land involved in the present suit with further prayer for cancellation of the sale deed executed by the defendant No. 3 in favour of defendant nos, 1 and 2. The said suit being decreed in terms of the compromise, declaring the title of the plaintiffs, the defendant nos. 1 and 2 therein challenged the said compromise decree by carrying an appeal i.e. Civil Appeal No. 47/19 of 1948 which finally stood dismissed by the learned Sub Judge, Bolangir. Challenging the said dismissal, they again carried the second appeal to this Court. During pendency of said second appeal, again compromise petition was filed, and the said defendant nos. 1 and 2 were given the land measuring Ac. 4.14 decimals out of the said suit land and the plaintiffs thus got the land of Ac. 8.59 decimals. The appeal being disposed of in term of the compromise, the plaintiffs in order to take possession filed the Execution Proceeding No. 304 of 1952 in the trial Court and accordingly they took delivery of possession on 30.03.1953. It is pertinent to mention here that in the said execution proceeding, the defendant No. 2 of the original suit i.e. Madhu raised an objection to the executabillity of the said decree by filing the regular petition under Section 47 of the Code of Civil Procedure, 1908 as it stood then. The objection was overruled and therefore, further appeal as it was provided under that old code was carried against the said order. The appeal also stood dismissed. The ground taken in the said objection in specific was that the said compromise had been passed behind the back of the objector and that fraud had been played in the matter of obtaining the compromise decree. Both the execution Court as well as the appellate Court then held that there was no fraud in finally passing of the compromise decree in the second appeal in the High Court and also found that the said objector is very much bound by it. Despite all these, further dispute cropped up. In the year 1958, the defendants initiated a proceeding under Section 145 Cr.P.C., where possession of the plaintiffs was maintained. A revision being carried to the High Court as per the provision of the Code of Criminal Procedure then in force, the matter stood remanded for passing necessary order afresh with reasons. Upon remand, possession of the defendants over the suit land was declared. Further revision being carried, the same, stood dismissed by the learned Sessions Judge and that remained undisturbed though challenged in the High Court. The plaintiffs' further case is that in view of the compromise decree finally passed in the second appeal, the defendants having lost all their right, title and interest over the suit land, yet are unnecessarily creating disturbances in possession of the plaintiffs, despite the possession being duly delivered to them in the execution proceeding. In view of such disturbance being made in their possession, the plaintiffs filed the above noted suit. The contesting defendants while traversing the plaint averments reiterate the fact that the defendant no. 2 was not a party to the said compromise made in the High Court in the second appeal carried in the first round of the litigation, and therefore, said compromise decree is not binding on them. It is also stated that though in the execution proceeding, order has been passed showing delivery of possession, it was actually not so done in the field and the defendants despite the same, have never parted with the physical possession. Ultimately, it is stated that they had acquired title by adverse possession.