JAGANNATH NAYAK Vs. LAXMINARAYAN THAKUR

JUDGEMENT

(1.) THIS is an appeal by the defendant No.4 challenging the judgment and decree passed by the learned Subordinate Judge, Jajpur in Title Appeal No.2 of 1980 modifying the judgment and decree passed by the learned Munsif, Jajpur in T.S. No.51 of 1974.

(2.) THE present respondents as plaintiffs filed a Title Suit for declaration of their right, title and interest in respect of the suit land described in Schedule 'A of the plaint, for recovery of the lands described in plot No.2 of the schedule, for permanently restraining the defendants 1 to 8 from interfering with their possession and also for declaration that the decree passed in Title Suit No.128 of 1971 of the Court of Munsif, Jajpur is illegal, collusive, inoperative, inexecutable and does not bind the plaintiffs or the suit properties to permanently restrain defendant No.4 from executing the ex parte decree of T.S. No.128 of 1971. A prayer was also made for demarcation of the eastern boundary of the suit plot and for fixing the demarcating pillars with the help of civil Court commissioner. The plaintiffs case, in brief, was that the suit schedule property was purchased by the plaintiffs and was in their possession, but taking advantage of the fact that the plaintiffs No.2 and 3 are married ladies residing with their husbands, defendant Nos.1 to 5 colluded and got an ex parte decree in T.S. No.128 of 1971 against the defendant Nos.9 and 10 and taking advantage of such decree, the defendants removed the fence, cut down the coconut trees standing on the suit land and encroached a space of 1 cubit x 60 cubits from south -eastern side of the suit plot. They also threatened to execute the decree of Title Suit No.128 of 1971. The plaintiffs, therefore, filed the suit seeking the aforementioned reliefs. None of the defendants except defendant No.4 filed written statement or contested the suit. Defendant No.4 claimed that plot No.113 measuring Ac.0.36 dec. was the ancestral property of defendant Nos.1 to 8 but in the partition dated 29.5.1952, the western side measuring Ac.0.18 fall to the share of defendant No.4 and his brother defendant No.5. But subsequently, defendant No.5 sold his share to him by registered sale deed dated 11.3.1963 as a result of which he (defendant No.4) became the exclusive owner in possession of Ac.0.18 dec. of land. Defendant No.4 pleaded that neither the plaintiffs nor defendant Nos.9 and 10 have any right or possession over the suit property. He denied that the decree in T.S. No.128 of 1971 was obtained by collusion or fraud and also denied the act of trespass, cutting of trees and removal of fence. Issues were framed and evidence of the contesting parties were taken. During the pendency of the suit,defendant No.6 died and his legal heirs were not substituted and the suit abated against him. Defendant No.8 appeared at later stage and wanted to participate in the hearing. But the plaintiffs abandoned the suit against defendant No.8 and the Court allowed that prayer. At subsequent stage, the plaintiff abandoned the suit against defendants No.1 to 3, 5 and 7 and his prayer in that regard was allowed by the Court. In the end the suit was decreed on contest against defendant No.4 and ex parte against defendant No.10 with cost. Defendant No.4 preferred appeal against the said judgment and decree. Learned 1st appellate Court after considering the submissions of the parties and on re -assessment of the evidence reversed the finding of the learned trial Court on issue Nos.6 and 10 while confirming the findings on other issues. In the result, he allowed the appeal in part. The said judgment and decree is under challenge in this appeal.

(3.) REGARDING the substantial question no. (iii), it will suffice to indicate that there was no pleading by any of the parties about the vesting of the intermediary interest in the State or the plaintiffs applying or not applying under Sections 6, 7, 8 of the Orissa Estate Abolition Act. Since it is a mixed question of fact and law,the Courts below rightly refused to entertain this submission as they could not have gone into this aspect without any pleading.