UPENDRANATH JENA Vs. SOUMENDRANATH BANARJEE

JUDGEMENT

(1.) THE Plaintiffs are in appeal against the Judgment and decree passed by Learned Additional District and Sessions Judge, 1st Track Court No. II, Bhubaneswar in T.A. No. 35 of 1995 (4/20C1) and Cross Appeal No. 14 of 1998 (32/2001).

(2.) THE suit land measures AC.0.720 decimals appertaining to plot No. 3183/3678 of Khata No. 271 corresponding to Hal Plot No. 4242 of Khata No. 722 of Mouza -Badagada. The Plaintiffs' case in essence was that one Dhani Das and Sarbeswar Jena were the joint owners of Ac.1.910 decimals of land which constituted the entire area of the above noted plot and that land stood recorded in their names in Ext. 1, the record of rights of old statement. Sometime in 1946 -47 there was a partition between the co -sharers Naba Bewa, the widow of Dhani Das and Bimbadhara Jena, the son of Sarbeswar Jena wherein each of them got Ac.0. 955 decimals of land; Naba Bewa taking the western half and Bimbadhar taking eastern half. Thereafter, Ac.0. 805 decimals of land out of share of Naba Bewa was acquired by the State Government for the purpose of Daya River Canal leaving a balance of Ac.0. 150 decimals which now stands recorded in the name of Rabindra Beura, the grand son of Naba Bewa. Out of the share of Sarbeswar the original Plaintiff No. 1, Bimbadhar sold away Ac.0.500 decimals to different purchasers leaving an area of Ac.0. 455 decimals. Bimbadhar then encroached and amalgamated adjoining government land to the extent of Ac.0. 255 decimals and thus remained in possession of Ac.0.710 decimals of the land, which is the suit land. Since the Defendants through their agent tried to sell this suit land and threatened to disturb the possession of the Plaintiffs the suit was filed by the Plaintiffs for decree of permanent injunction against the Defendants, who are the present Respondents. The Defendants in the written statement while denying the claim of the Plaintiffs over the suit land pleaded that Ac.1.910 decimals of land in plot No. 3183/3678 of Khata No. 271 was the joint property of Sarbeswar Jena and Dhani Das. Naba Bewa, the widow of Dhani Das and Sarbeswar Jena jointly sold that land to one Mahendranath Sundar Ray on 14.11.1946 under a registered sale deed Ext. L and the said Mahendranath Sundar Ray in turn sold that property to one Dwijendranath Banarjee under registered sale deed, Ext.K. On the death of Dwijendranath Banarjee his sons Bimalendu Banarjee and Jadabendu Banarjee became the joint owners of this property. Jadabendu then sold his share to his brother -Bimalendu under sale deed, Ext.N. The Defendant Nos. 2 to 5 purchased different portions of this land from Bimalendu Banarjee and possessed their respective portions. The specific plea of these Defendants was that the Plaintiffs have no right, title or possession over the suit property, their suit is barred by limitation and is bad for non -joinder of necessary parties. They also claimed that the suit for injunction simpliciter is not maintainable in the absence of any prayer for declaration of title and possession. From the above noted pleadings of the parties, the Trial Court framed the following five issues:

(3.) THE following substantial questions of law were formulated for consideration in this appeal.