DISTRICT COLLECTOR REPRESENTING STATE OF ORISSA AND ALSO IN HIS CAPACITY AS COLLECTOR Vs. NIRUPAMA BEHERA

JUDGEMENT

(1.) LATE Banamali Behera, the predecessor of the present respondent, as plaintiff filed Title Suit No.118 of 1984 in the Court of Munsif, Aska for declaration of his right, title over the suit land, confirmation of possession and also for declaring the order passed by appellant No.3 -Tahasildar, Aska in E.C. No.641 of 1978 as illegal and void. He also prayed to injunct the said Tahasildar from evicting him from the suit land. The case of the plaintiff in brief was that the suit land is his family rayati land over which he and his family members are in possession for more than 35 years, but under wrong notion, the Tahasildar, Aska initiated encroachment case bearing E.C. No.641 of 1978 and passed order of eviction vide order dated 11.1.1983. It was also pleaded that a portion of the suit plot sold to one Krushna Chandra Tripathy, was declared as rayati land by the Munsif, Aska in T.S. No.56 of 1982 and since that order has attained finality not having been challenged in any higher forum, the same is applicable to the suit property also and as such the initiation of the encroachment proceeding with respect to the suit land was illegal.

(2.) DEFENDANTS -appellants in the written statement claimed that the suit land is a Government land and not the rayati land of the plaintiff and the plaintiff has never remained in possession of the suit land for more than 30 years and hence the eviction order in the encroachment case is legally just and proper. It was also pleaded that the findings in T.S. No. 56 of 1982 of the Court of Munsif, Aska is not applicable to the sit land as the land and parties are different. It was further averred that suit is not maintainable in view of the bar provided under Section 16 of the Orissa Prevention of Land Encroachment Act, in short, "the Act".

(3.) THE following substantial question of law has been formulated for consideration in this appeal.