DHANESWAR NATH Vs. BIDYADHAR NATH AND OTHERS

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated 26.6.2010 and 6.7.2010 respectively passed by the learned Ad hoc Additional District Judge (FTC), Kamakhyanagar in R.F.A.No.48 of 2008/02 of 2009 confirming the judgment and decree dated 25.9.2008 and 20.10.2008 respectively passed by the learned Civil Judge (Sr.Division), Kamakhyanagar in Civil Suit No.41 of 2005.

(2.) The appellant as plaintiff instituted the suit for declaration of right, title and interest over the suit land, permanent injunction and in the alternative, for recovery of possession, impleading the respondents as defendants. The case of the plaintiff is that he is in possession of the suit schedule land along with other lands. The said land was recorded in his name in the final R.O.R. published in the year 1983. He is cultivating the said land since the time of his father and regularly paying rent to the Government. In the current settlement operation, mother of defendant no.1, namely, Saugi Nath, managed to gain over the Settlement Amin and made an entry of forcible possession in the R.O.R. against suit plot no.246. Taking advantage of the wrong entry in the R.O.R., defendant no.1 tried to re-plough the suit land on 10.7.2005, but due to protest, he could not enter into the suit land. The further case of the plaintiff is that in the year 1976, he had alienated sabik plot no.154/186, measuring an area of Ac.0.12 decimals along with some other plots i.e., plot no.154/188, measuring an area of Ac.0.13 decimals appertaining to sabik khata no.33 to one Rama Chandra Pattnaik and defendant nos.5 to 7 by means of a registered sale deed. No consideration was paid by defendant nos.5 to 7 and Ram Chandra Pattnaik. The said transaction was only a paper transaction. The plaintiff is still in possession of the suit land.

(3.) Pursuant to issuance of summons, defendant no.1 entered appearance and filed a comprehensive written statement and counter claim denying the assertions made in the plaint. The case of the defendants is that the land recorded under suit khata no.35 originally belonged to one Murari Nath. The land was recorded in his name during sabik settlement. Murari Nath had two daughters, namely, Suagi-mother of defendant no.1 and Asha-mother of the plaintiff. Murari Nath had no male issue. During his childhood, the plaintiff had lost his parents and became an orphan. He was brought up under the care and custody of Suagi Nath. Suagi Nath and her husband performed the marriage of the plaintiff. After marriage, the plaintiff stayed separately. During the life time, Murari Nath divided his landed properties recorded in khata no.33 of mouza-Mundideuli and had given Ac.2.23 decimals of land to Suagi Nath and Ac.1.24 decimals of land to the plaintiff. Thereafter Mutation Case No.282 was initiated. By order dated 23.5.1941, the land was mutated in favour of the respective parties. As the plaintiff was minor, the entire property of Murari Nath was under joint cultivating possession of Suagi Nath in spite of separate mutation. After marriage of the plaintiff in the year 1950, he started living separately from Suagi Nath and possessed the land mutated in his name, except sabik plot no.154/186, measuring an area Ac.0.12 decimals. Suagi Nath continued to remain in possession of the said plot to the knowledge of the plaintiff on her own right, exclusively without any obstruction or hindrance either from the plaintiff or from anybody and, as such she acquired right, title and interest by way of adverse possession in respect of the said plot no.154/186, which corresponds to hal plot no.246. The plaintiff has no semblance of right, title, interest and possession over the suit land. After the death of Suagi Nath, the defendants continued to possess the suit plot no.246. The sabik plot no.156 corresponding to hal suit plot no.250 belongs to the plaintiff and he is in possession of the said land. The defendant no.1 filed a counter claim with the prayer to declare his right, title and interest over the suit land and to declare the recording of the suit land in favour of the plaintiff as erroneous, confirmation of possession as well as permanent injunction.