BANA BHOTRANI Vs. BHADRA BHOTRA

JUDGEMENT

(1.) The legal representatives of the original plaintiffs are the appellants against a reversing judgment. The common ancestor of the plaintiff and defendants 1 and 2 is one Kusan Bhotra who had three sons Arjun, Fagu and Sunadhar. The original piaintiff was the son of Arjun. Defendant No. 1 is the son of Fagu and his son is defendant No. 2. Sunadhar died issueless. The plaintiffs case is that the suit land belonged to defendant No, 1 which fell to his share by partition. Subsequently by an oral sale the suit lands were purchased by the plaintiff and he took delivery of possession in pursuance of the same. He was in peaceful possession of the suit properties till 1975 when defendants 1 and 2 created some trouble which gave rise to a proceeding u/s. 145 Cr. P.C. By order dt. 26-10-76 the learned Magistrate attached the suit land being unable to decide as to which of the parties was in possession till a competent court decides the issue. The plaintiff thereafter filed the suit praying for declaration of right, title and interest and for possession. The defendants entered into contest and denied the plaint allegation. They denied the oral sale by virtue of which the plaintiff claims to have been put in possession and maintained that it is the defendants who had been all through in possession since the time of their father. Both parties adduced oral evidence in support of their respective case and the learned trial court decreed the plaintiffs suit on a finding that the plaintiff had been in possession of the suit property for more than the statutory period thus acquiring title thereto. He, therefore, declared that the plaintiff is entitled to possession of the suit land. Defendants 1 and 2 carried up the matter in appeal which was ultimately transferred to the court of the Addl. Subordinate Judge, Jeypore and numbered as T.A. No. 9/79. The learned lower appellate court on a consideration of the evidence on record reversed the findings of the learned trial court and found that the plaintiff has failed to establish his title to the suit property and, therefore, dismissed the suit. In this second appeal the plaintiff challenges the correctness of the judgment of the lower appellate court. The legal grounds on which the second appeal was admitted is to the effect that the lower appellate court has gone wrong in considering the question of title as it was a suit u/s. 146(1) Cr. P.C. in which the limited scope is to find out as to which of the parties was in possession of the suit property on the date of the preliminary order u/s. 145 Cr. P.C. irrespective of title being found with the party in possession.

(2.) Mr. Ramdas, learned counsel appearing for the appellant, has invited my attention to the provisions of S. 146(1) Cr. P.C. which reads as follows :-

(3.) Mr. Ramdas next contended that the lower appellate court has not taken into consideration certain admissions made by defendant No. 1 himself examined as D. W. 3 and on that basis prayed for remand of the suit. Having gone through the evidence I do not find that any useful purpose will be served by remand of the suit to the lower appellate court as the alleged admissions are inconsequential so far as the result of the suit is concerned.