DANDAPANI SAHU Vs. BUDHURAM LOHAR

JUDGEMENT

(1.) THIS Second Appeal is on behalf of the plaintiff.

(2.) AS per the plaint, the plaintiff came to Rourkela in January, 1956 and occupied Ac. 0.5 decs. and Ac. 0.5.1/2 decs. of land out of plot No. 411 and 412 respectively of mouza -Mahulpali, as the same were lying vacant then. He constructed three huts contiguously over an area measuring Ac. 0.01.1/2 decs. appertaining to plot No. 411 and fenced the remaining portion of the said plot and the entire plot No. 412 with AMARI bush and utilized the same as Bari and cowshed. He had been possessing the said land peacefully, openly and exclusively as a matter of right till 1971 when the defendant forcibly dispossessed him out o an area of 41' X 30' of land described in detail in the plaint schedule. So he was compelled to initiate a proceeding under Section 145 of Cr.P.C. vide Criminal Misc. Case No. 137 of 1971 in the Court of Sri P. K. Jena, Magistrate First Class, Panposh at Uditnagar against the defendant wherein possession was declared in favour of the latter. The defendant is a stranger to the property and was never in possession of the said land, whereas the possession of the plaintiff matured to title. Hence he filed Title Suit No. 26 of 1972 in the Court of the Munsif, Panposh with prayer for declaration of his title and possession over the suit land, as described in the schedule of the plaint, recovery of possession of the same and for declaration that the order passed in Criminal Misc. Case No. 137 of 1971 is not binding on him.

(3.) THE defendant -Respondent in his written statement, filed before the first appellate Court in Title Appeal No. 9 of 1973 on 7.4.1979 contended that Nabaghana Palei, Govinda Sahu and one Bisoi had constructed the three huts over plot No. 411 and resided there. In or about the year 1971 plaintiff purchased the two huts belonging to, Govinda Sahu and Nabaghana Palei and possessed the same. Defendant raised a temporary structure over 41' X 30' of land out of sabik plot Nos. 411 and 412 and used the same as cowshed and store house of manure. The portion of land over which the defendant constructed his house along with the land over which he raised the structure for storing manure and the remaining portion of plot No. 412 being renumbered as plot No. 1027 was recorded in his name in the current settlement. The rest portion of plot No. 411 having been re -numbered as plot No. 1027/1247 was recorded in the name of one Baidyanath Ganguly with note of possession in favour of defendant. In the year 1970 defendant demolished the kutcha house which was being used as cowshed and constructed a pucca house over it. When the construction reached the roof level, (he plaintiff with an evil design and ill motive filed 1 C.C. Case No. 3 of 1971 and Criminal Misc. Case No. 137/1 of 1971 which however ended in favour of the defendant. It is the specific case of the defendant that the plaintiff was never in possession of the suit land or any portion thereof at any point of time. He further pleaded that the description of the suit land was not specific. Under such premises he pressed to dismiss the suit.