CHINTAMANI MOHAPATRA Vs. SMT. SANJUKTA DAS

JUDGEMENT

(1.) This appeal has been filed against an order dated 19.7.2007 passed by the learned 2nd Addl. District Judge, Bhubaneswar in RFA No. 7/48 of 2002 which had been directed against the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Bhubaneswar in T.S. No. 345/177 of 1986. The trial Court had decreed the suit filed by the predecessor-in-interest of the present appellants namely, Smt. Ashamanjari Mohapatra as the plaintiff declaring their right, title and interest over the suit land and directing the respondent No. 1 (defendant No. 1) to deliver the vacant possession of the suit land to them within a period of two months giving liberty to the plaintiffs-appellant in case of failure on the part of the respondent No. 1 (defendant No. 1) to take the same through process of law.

(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.) Plaintiffs' case is that land measuring Ac. 0.460 decimals under Sabik Plot No. 455 as per the record of the settlement of the year 1962 belonged to Sundari Dei and Gandharba Swain. In an amicable partition between them, the eastern portion measuring Ac. 0.230 decimals is said to have gone in the share of Sundari whereas the rest half on the western side is said to have been fallen to the share of Gandharba. It is further stated that there was a pucca boundary wall separating the above land as allotted to them in their respective shares. It is next stated that for legal necessity Sundari had sold Ac. 0.072 decimals to Natabar Mohanty and that was adjoining the boundary wall, Ac. 0.072 decimals to Promod Kumar Mohanty and A 0.072 dec. to Ashamanjari, the original plaintiff to the further east of Pramod Kumar Mohanty. The sale deeds evidencing the above transactions are said to have been executed on 12.11.1963 and registered. After sale of land as above, balance land of Ac. 0.014 decimals remained with Sundari. It is further stated that Promod subsequently alienated his entire purchased land to one Pratap Chandra Samanta by registered sale deed dated 5.12.75. The vendees are said to have taken possession of their respective purchased land from Sundari being so delivered. The land of the plaintiff was lying vacant as she could not raise any construction in view of paucity of fund. But it is said to have been marked by fixation of boundary pillars on all sides and so demarcated. It was so mutated in the name of the original plaintiff in Mutation Case No. 1910 of 1964-65 being assigned with separate khata No. 580/57 and plot Nos. 455/3012 measuring for an extent of land of Ac. 0.072 decimals in conformity with her purchase. It is alleged that in the year 1983, one Kanchana Dei created trouble in the peaceful possession of land by the plaintiff and that led for initiation of Demarcation Case No. 556 of 1983, during the pendency of which said Kanchan executed a sale deed in favour of defendant No. 1. Thereafter, the plaintiff found defendant No. 1 to be putting a stone boundary wall encroaching her land at the eastern side. However, then it was agreed that they would abide by the demarcation that would be made in the demarcation proceeding. Tahasil Amin measured the land and found the encroachment of Ac. 0.023 decimals of land by defendant No. 1 and accordingly submitted the report. However, the defendant No. 1 did not pay any heed to the same and did not remove the said encroachment for which the suit had to be filed claiming the reliefs as' aforesaid. During the pendency of the suit, hal settlement operation commenced and in the said operation, land measuring Ac. 0.050 decimals from out of the plaintiffs total purchased land of Ac. 00.072 decimals was recorded in her name in view of her physical possession and the encroached portion from out of her purchased land was illegally included in hal plot No. 780 in the name of defendant No. 1.