DASARATHI PANIGRAHI Vs. STATE OF ORISSA AND ANOTHER

JUDGEMENT

(1.) This is a plaintiff's appeal against a reversing judgment in a suit for declaration of right, title and interest over the suit land, declaration of encroachment case as not maintainable and permanent injunction.

(2.) The case of the plaintiff is that sabik plot no.2578, area Ac.0.09 dec. and sabik plot no.2579, area Ac.0.05 dec. appertaining to sabik holding no.63 of village Chittalpur was recorded in the name of late Nanda Panigrahi, the grandfather of the plaintiff. After death of Nanda, his only son, Jagabandhu inherited the property and was in possession of the same. Sabik plot no.2580 appertaining to sabik holding no.136 was recorded in the name of Lingaraj Panigrahi, one of the agnates of late Nanda. Lingaraj sold the property measuring an area Ac.0.09 dec. to Nanda and delivered possession. After death of Nanda, his son Jagabadhu became the owner of the land. The above three sabik plots had been amalgamated in hal plot no.1897 appertaining to hal holding no.71, but then the area measuring Ac.0.23 dec. had been reduced to Ac.0.19 dec. in the hal settlement. Taking advantage of wrong recording in the hal settlement, the Tahasildar, Hindol, defendant no.2 initiated Encroachment Case No.5/86-87 against the plaintiff alleging encroachment of Ac.0½ appertaining to plot no.1900, holding no.339 of village Chittalpur. Kumud, son of the plaintiff, was a minor. Defendant no.2 took an undertaking from him that the land under encroachment had been vacated. The plaintiff is not bound by the same. The proceeding is bad in law. It is further pleaded that the plaintiff has right, title and interest over half decimal of land. He is in possession of the land peacefully and continuously. With this factual scenario, he instituted T.S.No.3 of 1989 in the court of the learned Additional Munsif, Hindol seeking the relief mentioned supra.

(3.) The defendants filed a written statement denying the allegations made in the plaint. It is stated that the plaintiff had not acquired any right, title and interest over the suit land. He was a trespasser for which proceeding under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as "O.P.L.E.Act") was initiated against him. He was duly evicted. Instead of filing the appeal, he instituted the suit. The suit is not maintainable. The defendants had admitted that plot no.1897 under holding no.71 of the hal record of right, measuring an area Ac.0.19 dec. has been recorded in the name of Jagabandhu Panigrahi, the son of Nanda Panigrahi. It was further pleased that in the event the plaintiff was aggrieved by wrong recording, he could have taken steps under the provisions of the Orissa Survey and Settlement Act. The R.I., Rason visited the spot on 5.11.1987 and found that encroachment has been vacated. It was ascertained from the Electoral Roll of village that Kumud Panigrahi son of the plaintiff was aged 24 years, who in absence of his father, reported in writing that the land under encroachment had been vacated. The order of eviction was passed after following the procedure established by law. The plaintiff had not acquired right, title and interest over the suit land by way of adverse possession.