AMARESWAR SWAIN Vs. STATE OF ORISSA & ANOTHER

JUDGEMENT

(1.) This is plaintiff's appeal against the confirming judgment.

(2.) The case of the plaintiff is that one Iswar Chandra Choudhury of Balighati and Sansak Sekhar Choudhury of Medinpur of the State of West Bengal were the ex-intermediary in respect of Sabik Khata No. 221 corresponding to Sabik Plot No. 1329 of Mouza- Ranapada. The former had got 12 anas interest and the latter had got 4 anas in the said property. They had inducted different tenants and collected rent. The father of the plaintiff and his uncle Udayanath Swain and Budhanath Swain took the land on lease for agriculture and horticultural purpose on rayati basis on payment of salami. They also took some property out of Sabik Plot No. 1290 on raiyati basis to build up residential house. The suit properties were leased out to them as tenants. There was a partition between the plaintiff's father and his uncle by registered partition deed of the year 1960. The suit land vested in the State of Orissa under the Orissa Estate Abolition Act (in short "the OEA Act"). The rent was collected from the plaintiff's father by the State Government. It is further pleaded that his father had been possessing the suit land peacefully and uninterruptedly as a rayiat. After his father, he is in possession of the suit land. During the last settlement operation, the settlement authority instead of recording the suit land in his name has noted forcible possession. Defendant no. 2 initiated Encroachment Case No. 112 of 1985 against him. Initiation of encroachment case is illegal and liable to be struck down. With this factual scenario, he instituted the suit for declaration of right, confirmation of possession and permanent injunction impleading the respondents as defendants.

(3.) Pursuant to issuance of summons, defendant no. 2 entered appearance and filed a written statement denying the assertions made in the plaintiff. It is pleaded that the suit is barred by limitation and hit under the OEA Act. It is further pleaded that no notice under Section 80 CPC was served prior to the institution of the suit and as such, the suit is not maintainable. The suit land belonged to ex-intermediary Sri Iswar Chandra Choudhury and Sasanka Sekhar Choudhury of West Bengal. Neither plaintiff's father nor his brother were inducted as tenants by the said ex-intermediary. The suit land vested in the State in the year 195 No tenant ledger had been maintained in respect of the suit plot. Although tenant ledger was opened in the year 1964-65 and the State Government collected rent from the plaintiff, the same was under a misconception and it was stopped in the year 1979-80. During the last settlement operation, the suit land was recorded in the name of the State Government and the dispute is pending before the Commissioner of Land Records and Settlement in Revision Case No. 98 of 1990. It is further pleaded that the suit property is not properly identifiable.