GURIA DEI Vs. KANHU CHARAN PATI

JUDGEMENT

(1.) THIS Civil Revision is directed against the impugned Judgment and decree dated 18.3.2006 and 30.3.2006 respectively passed by the Learned Addl. District Judge, Jajpur in Money Appeal No. 6 of 1996 dismissing the appeal on contest without cost.

(2.) THE brief facts of the case are as follows; Petitioner is the Defendant No. 2 in the suit for damage. Opposite Parties as the Plaintiffs filed the suit claiming damage of Rs. 960/ - from the Defendants along with cost of the suit. Plaintiffs pleaded in the plaint that they purchased the disputed property from the Defendants on 5.6.1979 for a consideration of Rs. 1000/ -. After purchase, they were possessing the property since 5.6.1979 by growing paddy. The land has been settled in the name of the Plaintiffs and they were paying rent for the suit land. While the matter stood thus, on 7.12.1990 the Defendants with the help of some labourers cut away and removed the crops raised by the Plaintiffs in the suit land. It is further stated that since the Defendants did not possess the disputed property or raise any crops, they are liable to pay damages to the Plaintiffs. As Defendant No. 1 did not contest the suit, he was set ex parte on 10.9.1991. Defendant No. 2 filed her written -statement traversing the plaint allegations and stated that the suit was barred by Section 39 of the Orissa Estate Abolition Act due to the pendency of the appeal before the Sub Collector , Jajpur and the disputed land was recorded as "Bajyapti Madhya Satwadhikary" in the name of Gobinda Debata, who died leaving behind his only son Brundaban Debata. The Defendants are his successors -in -interest. Defendant No. 1 is the son and Defendant No. 2 is the daughter of said Brundaban Debata. Defendant No. 1 is insane from his childhood. Defendant No. 2 married to one Harihara Panda who resided in her house as illatum son -in -law and taking advantage of illiteracy of Defendant No. 2 and insanity of Defendant No. 1, the Plaintiffs obtained a false and fabricated document and got the suit land settled in their names. After knowing about the fraudulent transaction and settlement of the land in favour of the Plaintiffs, the Defendants preferred an appeal before the Sub -Collector, Jajpur against the settlement order. In the said appeal, the Sub -Collector, Jajpur reversed the settlement of land in the names of the Plaintiffs and the Defendants harvested the crops raised by them. As such, the Plaintiffs are not entitled to any damage. On the above pleadings, the Learned Civil Judge (Junior Division), Jajpur formulated as many as five issues which are as follows:

(3.) In order to prove their respective cases, Plaintiffs examined as many as three witnesses out of whom P.W.1 is the Plaintiff and P.Ws. 2 and 3 are co -villagers. They also adduced documentary evidence which were marked as Ext.1 to Ext 5/a. Those are registered sale deed, certified copy of order in O.E.A Case No. 704 of 1994 and 706 of 1984, finger print examination report, etc. Defendants also examined as many as four witnesses and exhibited documents which are marked as Ext A to Ext G. The Learned Civil Judge after analyzing the evidence on record came to the finding that in view of the evidence of P.Ws. 2 and 3 coupled with the evidence of P.W.1 and the rent receipt as per Ext 4 series, possession of the Plaintiffs over the suit land in the year 1990 is established and that the Plaintiffs had raised the crops and the same was removed by the Defendants through their labourers in the year 1990. Thus, Plaintiffs were entitled to get damage of Rs. 960/ - from the Defendants. On the above findings, the Learned Civil Judge decreed the suit without going into the title of the disputed properties. It appears that no specific issue was framed with regard to the title of the parties and the said issue was also not contested by the parties by adducing adequate evidence to that regard but the Trial Court has made observations regarding the title of the parties.