SANTOSHI KORAD Vs. STATE OF ORISSA & OTHERS

JUDGEMENT

(1.) Plaintiff is the appellant against a confirming judgment in a suit for declaration of right, title and interest and for declaration of the assignment of two acres of land out of suit property in favour of defendant no.3 is illegal.

(2.) Case of the plaintiff is that her husband was in possession of an area of Ac.5.22 cents appertaining to Khata No.334, Plot No.1928 of Mouza-Chheligada about 35 years ago. After him, she is in possession of the same. The suit plot has been recorded as "Abadyayoga Anabadi" in the ROR. The Tahasildar, R. Udayagiri, defendant no.2, initiated L.C Case No.44 of 1980 against her. She was in occupation of the land. She prayed for assignment of the land in her favour. The R.I was directed to ascertain as to whether she was a landless person. The case was converted to Encroachment Case No.528 of 1980. The R.I submitted the report stating therein that the husband of the plaintiff had only two acres of land. Accordingly, defendant no.2 directed to assign two acres of land out of the said plot in her favour. Thereafter two acres of land was assigned to her. The ROR was corrected following due procedure. It is further pleaded that she is in possession and enjoyment of the remaining Ac.3.22 cents of land for more than 30 years. While the matter stood thus, one Budhia Paiko claimed to be 'Savara' by caste initiated RMC No.40 of 1978 against her husband alleging that his father's elder brother sold the suit plot to her husband and prayed for restoration of the land. Her husband filed Regulation Appeal No.3 of 1979 before the A.D.M. The appellate authority allowed the appeal and directed the Special Officer, Parlakhemundi for further enquiry to find out as to who was the original owner of the suit plot. After remand, the Special Officer directed Budhia to approach defendant no.2, since two acres of land had already assigned in favour of the plaintiff. Budhia filed a petition before defendant no.2. Thereafter, defendant no.3 appeared before defendant no.2 and asserted that he was earlier assigned two acres of land in L.C Case No.40 of 1981-82 out of the said Ac.5.22 cents. Defendant no.2 demarcated the land. The plaintiff came to know about the assignment of two acres of land in favour of defendant no.3. There was no publication of notice inviting objection before assignment of the land in favour of defendant no.3. Defendant no.3 is not in possession and enjoyment of any portion of plot of Ac.5.22 cents. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

(3.) Defendant nos.1 and 2 entered appearance and filed a written statement. It is pleaded that the suit land had been recorded as "Abadyayoga Anabadi" in the settlement operation. Neither the plaintiff nor her husband was in possession and enjoyment of the suit schedule land. The R.I submitted the report on 24.3.1980 stating that the plaintiff was in unauthorized possession of the suit land. L.E Case No.528 of 1979-80 was initiated against the plaintiff under the Orissa Land Encroachment Act. On 10.4.1980 the plaintiff appeared before defendant no.2 and prayed to settle the land in her favour. On the prayer of the plaintiff encroachment proceeding was converted to Lease Case No.44 of 1980-81. During enquiry it was revealed that the plaintiff had suppressed the fact that her husband was having two acres of land in Dumba village covered under Khata No.40, Plot No.1/477. In view of the same, two acres of land out of entire land was settled in her favour and possession was delivered. Defendant nos.1 and 2 categorically denied that the plaintiff is in possession and enjoyment of the entire suit property for more than 30 years. In the settlement operation, the plaintiff had never made any claim.