BANSHIDHAR MOHAPATRA AND ANR. Vs. SOURI SAMAL

JUDGEMENT

(1.) PLAINTIFF purchased the disputed - land by a registered sale deed (Ex. 6) on 13 -5 -60 from Defendant, No. 2, son of late Bodhi Naik. Plaintiff's Case is that the disputed land was the Mehenter Jagir land of Bodhi Naik and he was in enjoyment and possession of the same rent free in lieu of services being rendered to the ex -Ruler of Athgarh and his family members. He was in possession in his own right, title and interest till death. In the settlement records of the year 1922, the Jagir appears to have been resumed without the knowledge of Bodhi and Aparti (Defendant no, 2). Despite it, however, they continued in possession as tenants after rendering the usual services. In 1956, Defendant No. 2 obtained the Parcha (Ex. 1) in the current settlement. In 1960, Defendant No. 1 having no right, title and interest attempted to interfere with the possession of the Plaintiff resulting in a number of criminal cases on either side. Plaintiff accordingly asks for declaration of title, confirmation .of possession and in the alternative for recovery of possession, for permanent injunction and for recovery of Rs. 100 / - as being the value of the crop forcibly removed by Defendant No. 1. Defendant No. 2 fully supported the Plaintiff's case

(2.) THE learned Munsif held that Defendant No. 2 and before him his father were holding the suit land as Mehenter Jagir and were in possession thereof and Defendant No. 1 did not acquire any title by adverse possession. On the finding that Ex. 6 was genuine and for consideration, be decreed the Plaintiff's suit.

(3.) BOTH the Courts have concurrently found that Defendant No. 1 has failed to prove his possession. He is a rank trespasser. The only question for consideration is whether Plaintiff and his predecessor -in -interest were in prior possession. Plaintiff's case is that before his purchase, the disputed land was fallow only for a period of two years and before that Defendant No. 2 was in possession through bhag tenants. As the learned lower appellate Court has not placed reliance on the bhag pattas and kabuliyats (Exs. 7 to 9) in the absence of the persons in whose favour they were executed they are excluded from consideration.