STATE OF ORISSA AND ANOTHER Vs. RABINARAYAN ROUT

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 16.12.1998 and 23.12.1998 respectively passed by the learned Additional Civil Judge (Sr. Division), Dhenkanal in Title Appeal No.26 of 1997/4 of 1998 reversing the judgment and decree dated 17.5.1997 and 28.6.1997 passed by the learned Additional Civil Judge (Jr. Division), Hindol in T.S. No.5 of 1992

(2.) The respondent as plaintiff instituted T.S.No.5 of 1992 in the court of the learned Additional Civil Judge (Jr. Division), Hindol for declaration of right, title and interest over the suit land impleading the appellants as defendants. Case of the plaintiff is that his father Dullava Paikra had planted mango trees over sabik plot no.246 holding no.15 measuring an area of Ac.3.90 dec. of mouza Purusottampur in the Ex-State of Hindol. In the remarks column of the Sabik R.O.R of 1911-12, his father's name had been mentioned as "Phalavogi Right" i.e. right to enjoy fruits. After his father's death, he inherited the suit properties. During hal settlement, the sabik plot was bifurcated into hal plot no.160/293 measuring an area Ac.1.10 dec. and assigned with holding no.38 and plot no.159 having an area of Ac.0.98 dec. and plot no.150 having an area Ac.1.72 dec. both of holding No.41. His possession was only recorded in respect of plot no.160/293, holding no.38. But then he was also in continuous possession of the land measuring an area of Ac.50 dec. appertaining to hal plot no.213/277, holding no.38. His possession over such land was recorded in hal R.O.R. since 1955. He is in possession of the suit land peacefully and continuously with the hostile animus to the defendants for more than thirty years and as such acquired title by way of adverse possession. It is further pleaded that he was a Government servant and could not take steps in the settlement operation. The defendant no.2 initiated Encroachment Case No.7 of 1986 against him and deleted his note of possession without affording an opportunity of hearing. When defendant no.1 directed to put the mango orchard to auction, he instituted the suit after issuing notice under Section 80 C.P.C to defendants.

(3.) The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit property in respect of khata no.38 was recorded as Abadijogya Anabadi. The land appertaining to khata no.41 was recorded in Rakhita khata of the Government. Since the plaintiff was not in possession of the suit land, note of possession was omitted pursuant to the order passed in Encroachment Case No.7 of 1986.