RAMAKANTA MISRA (DEAD) AND AFTER HIM SARASWATI MISRA Vs. PRATIMA MISRA (DEAD) AND AFTER HER DR.UTTAM PANI

JUDGEMENT

(1.) THIS is a plaintiffs appeal against the judgment and decree dated 7.11.1977 and 15.11.1977 passed by Subordinate Judge, Rourkela in Title Suit No.32/7 of 1967 -77.

(2.) THE original plaintiff Dr. Ramakanta Mishra in May 1967 filed the above noted suit complaining encroachment from the eastern portion of his purchased land by defendant No.1, which he claimed to be approximately 4 decimals. The case of the plaintiff was that on 17th May, 1955 he obtained a lease of 67 decimals of land out of Plot No.484 vide Ext.1. On 14th July, 1964 defendant No.2 sold this land to the plaintiff under Ext.2. To the contiguous east of plaintiffs land defendant No.2 had leased out 67 decimals to defendant No.3. On 5th July 1965 defendant No.1, who is the wife of defendant No.3 purchased 62 decimals out of that 67 decimals of land under Ext.B. Between 1961 and 1964 defendant No.1 encroached a portion of plaintiffs land and when the plaintiff objected, the construction on the encroached land was demolished. In 1966 defendant No.1 again started constructing a compound wall on plaintiffs land extending up to the end of the northern boundary of plot No.484. When the defendants 1 and 3 did not vacate the encroached portion, the plaintiff came up with the suit asking for declaration of title, recovery of possession and damages.

(3.) PURSUANT to that order, learned trial Court appointed one Dr. K. K. Jain, Professor of Rourkela Engineering College as the Commissioner to carry out the survey work in the light of the aforementioned direction. The Engineer -Commissioner conducted the survey and submitted his report that was marked as Ext.II. The Commissioner was also examined as Court witness. After considering the survey report and the evidence on record learned trial Judge decreed the suit in part on contest against defendants 1 and 3 and ex parte against defendant No.2 without cost, declaring the plaintiffs title over the encroached land shown in the Commissioners report, Ext.III/B measuring About Ac.0.04 decimals and directed recovery of possession of the same. Aggrieved by that judgment and decree, the plaintiff filed the present appeal. During the pendency of this appeal plaintiff -appellant died and his legal heirs, who are the present appellants were substituted. Similarly, respondents 1 and 2 also died and their legal heirs, who are the present respondents were substituted.