NARAHARI Vs. MURALIDHAR ROUT

JUDGEMENT

(1.) THE defendants file this appeal against the confirming judgment of the Subordinate Judge of Balasore decreeing the plaintiff's suit for a declaration of title and confirmation of possession of the suit lands under C. S. plots 881 and 882 in Dharmagatpur village and for damages.

(2.) THE plaintiff's case is that the suit lands were recorded in the names of defendants 2, 3 and 6 and Sama Rout and Dasa Rout. They were put to auction in rent execution case No. 299 of 1933 -34 and were purchased by plaintiff No. 1 for a sum of Rs. 50. All the recorded tenants were made defendants in that suit. Plaintiff No. 1 took delivery of possession of the plots on 26 -7 -34. Defendant No. 1 as the next friend of defendant No. 2 instituted Original Suit No. 93 of 1934 in the Court of the Munsif, Bhadrak, for setting aside the rent sale on the ground that the sale had been obtained by fraud and collusion at the instance of plaintiff No. 1. But however the suit was withdrawn on 5 -3 -35 with permission to bring a fresh suit on the same cause of action, on condition that he should pay the costs and pleader's fee at 3 per cent, to defendant No. 1 of that suit. It was ordered that in default of such payment the suit shall stand dismissed. The costs, as directed, wcro not paid. But, defendant No. 1 with the other defendants forcibly carried away paddy and bamboos from the suit lands in 1355 Sal. The defendants were convicted for this act, but were ultimately acquitted by the High Court, The defendants again removed the paddy crop and also cut bamboos from the suit lands in 1357 Sal. Hence the suit.

(3.) THE trial Court held that the plaintiffs and defendants 1 to 12 had a common ancestor, that C. S. Plots Nos. 881 and 882 corresponded to R. S. plot No. 588; and that R. S. plot No. 568 originally belonged to the branches of both the plaintiffs and defendants 1 to 12. The learned Munsif also held that there was no evidence of the defendant's case that the suit plots belonged to the plaintiffs and defendants 1 to 12 jointly before they were put to rent execution sale and that even if defendants 1 to 12 had any interest in the suit plots, they had knowledge of the rent sale right from the year 1934. He further held that the defendants could not contest their title in the present suit by virtue of not complying with the conditions in the prior suit and that the plaintiffs were in possession of the lands since the rent sale.