SAPA SIMADRI PATRO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree passed by learned 2nd Additional District Judge, Berhampur in Title Appeal No. 17 of 1985 (T.A.No. 56/84, GDC) confirming the judgment and decree of learned Munsif, Berhampur in Title Suit No. 74 of 1983.

(2.) THE present appellant as plaintiff filed the above noted suit for injunction against the defendant -respondents in respect of the suit Schedule 'A' land. His case in brief was that originally one Erkula Babu was in possession and enjoyment of the suit schedule land for many years and had acquired title over the same. He sold 80 cents of land to the plaintiff in the year 1973 and along with this land he also delivered some more lands situated in survey plot No. 547. The plaintiff after taking possession of these lands made some improvements and remained in cultivating possession thereof. When the matter stood thus, an encroachment case bearing L.E.C. No. 170 of 1975 was initiated against him in respect of the suit land, but the Tahasildar after an enquiry found that the encroachment of the plaintiff and his vendor was more than 60 years and such possession was not objectionable. Accordingly, the said proceeding was dropped under Section 13 of the OPLE Act, 1972 with a direction to the R.I. to record 2 acres of the encroached land in the name of the plaintiff. The said order, Ext. 4, was not challenged in any higher forum. The plaintiff accordingly, continued his possession over the suit land. But in the year 1983 another land encroachment case bearing LEC No. 62 of 1983 and M.C.Case No. 3 of 1983 -84 were initiated with respect to the Schedule 'B' property, which is part of the schedule 'A' property, which compelled the plaintiff to file the above noted suit for issue of injunction restraining the respondent -State from disturbing his possession over the suit land.

(3.) FROM the pleadings of the parties, five issues were framed. Plaintiff examined four witnesses and produced documents which were marked Exts. 1 to 6. Defendants examined two witnesses and adduced documents which were marked as Exts. A to G. On consideration of these evidence learned trial Court dismissed the suit with the findings that the plaintiff has got no right, title, interest over the suit land, that the suit is hit under Section 80 of the C.P.C, that he is estopped from filing the suit in respect of the suit property in view of the decree passed in T.S.No. 9 of 1978. in favour of Kasinath Sahu, that the order of Tahasildar in Ext. 4 is a non -speaking order. Against the said judgment and decree the plaintiff filed appeal. Learned first appellate Court confirmed the judgment and decree of the trial Court with the following findings: The suit suffers from non -joinder of Kasinath Sahu, who is a necessary party, the plaintiff is estopped from filing the suit as part of the suit property was subject -matter of Title Suit No. 9 of 1978, Ext. 4 would not operate as resjudicata as Tahasildar had no authority to decide the right, title, interest over the said property, plaintiff was not in possession of the suit property and he has also not acquired any right, title over the same. The said judgment and decree of the first appellate Court is under challenge in this appeal.