R NARSAMA Vs. DASARI HARI BABU AND OTHERS

JUDGEMENT

(1.) Defendant no.3 is the appellant against a reversing judgment.

(2.) Respondent nos.1 to 3 along with their father as plaintiffs instituted the suit for declaration of title, permanent and mandatory injunction. The case of the plaintiffs was that the suit property originally belonged to one Y. Simhadri. She alienated the land in favour of D. Ammalu, wife of plaintiff no.1 and mother of plaintiff nos.2 to 4 by means of a registered sale deed on 31.12.62. D. Ammalu constructed a dwelling house. She used to pay the holding tax to the Berhampur Municipality. D. Ammalu instituted T.S. No.20/1964 in the court of the learned Munsif, Berhampur against R. Narasamma, defendant no.3, for permanent injunction. The suit was decreed. The judgment is binding on the State of Orissa. After death of D. Ammalu, the plaintiffs succeeded to the property. They are in possession of the suit land for more than sixty years peacefully, continuously and with the hostile animus to the State and as such perfected title by way of adverse possession. While the matter stood thus, a proceeding under Sec.7 of the Orissa Prevention of Land Encroachment Act, 1954 was initiated against them. Order of eviction was passed. They assailed the order in the appeal. The appeal was dismissed. Thereafter they filed revision, which was eventually dismissed. They filed O.J.C. Nos.423 and 457 of 1969 before this Court. The order was quashed. Thereafter L.E. Case No.357/70 was initiated against them. The plaintiff nos.2 to 4 withdrew the petition, since the provisions of the said Act was ultravires. The Assistant Settlement Officer, Berhampur, Ganjam recorded the land as 'Gharabari' in the name of the plaintiffs. The defendant no.3 instituted T.S. No.50/72 against the wife of plaintiff no.1 and the mother of plaintiff nos.2 to 4 that the decree passed in T.S. No.20/64 is void and mandatory injunction. The judgment and decree in T.S. No.20/64 will operate as res judicata. The land never belonged to the Government. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

(3.) Defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. The specific case of the defendant nos.1 and 2 was that the suit property never belonged to D. Ammalu and plaintiffs. The suit land is village site paramboke and belonged to the State. The plaintiffs have no semblance of right, title and interest over the same. Y. Simhadri had no right to alienate the land in favour of D. Ammalu. D. Ammalu had no title over the same. Encroachment case was initiated. Order of eviction was passed. Plaintiff no.1 and D. Ammalu paid penalty. She filed writ petitions before this Court. Thereafter the same were withdrawn. The Act 6 of 1972 was passed with retrospective effect and the proceedings, which were taken under the old Act, were deemed to have been taken under the present Act and as such the eviction order passed against D. Ammalu should be deemed to be legal and binding on her. In T.S. No.20 of 1964, the State was not a party and as such the decree is not binding on it. In the present settlement, the suit land has been recorded as Sarbasadharan.