NANDA KISHORE BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Plaintiff is the appellant against an affirming judgment in a suit for declaration of right, title and interest and confirmation of possession.

(2.) The dispute pertains to the land appertaining to Plot No. 81, Khata No. 224, area 14 cubits x 50 cubits of Mouza-Jiringpadan in the District of Phulbani. The case of the plaintiff is that his father was in possession of the suit schedule land for the last 60 years. His father put a cabin over the suit land and opened a tailoring shop. He was not aware of the settlement operation during of the year 1965 to 1970. The suit land had been recorded in the name of the Government and kept under Anabadi Khata. After receipt of notice in Encroachment Case No.65 of 72, he came to know that the suit land had been recorded in the name of the Government. The encroachment case was initiated in respect of one cent of land, though he is in possession of four cent. The order of eviction was passed without affording opportunity of hearing to the plaintiff. Defendant no.3 succeeded in getting his name recorded in respect of plot nos.83 and 84 and constructed boundary wall. The matter was reported to the Sub-Collector, Phulbani. A proceeding under Section 144 Cr.P.C. was initiated and an order was passed prohibiting defendant no.3 from raising compound wall over the suit land. Since the proceeding was not converted to under Section 145 Cr.P.C., he instituted the suit after issuing notice under Section 80 CPC.

(3.) Pursuant to issuance of summons, defendant no.1 & 2 entered appearance and filed a joint written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit, it is stated that the settlement authorities had correctly recorded the land in the name of the Government under Anabadi Khata. The kissam of land is Patita Ghasa Padia. When the plaintiff was found unauthorised occupation of the land, a proceeding under the provisions of the Orissa Prevention of Land Encroachment Act (in short "the OPLE Act") was initiated against him. He was evicted from the suit land. It is further stated that plot nos.83 and 84 were not recorded in the name of defendant no.3, which are still in the name of the Government under Anabadi Khata. It is further stated that neither the plaintiff nor his father had perfected title by way of long possession. Defendant no.3 has filed a separate written statement supporting the stand of defendant nos.1 and 2.