BIKAL CHARAN SWAIN Vs. NIDHI SWAIN AND ANOTHER

JUDGEMENT

(1.) The defendant is the appellant against a confirming judgment.

(2.) Plaintiffs-Respondents instituted the suit for declaration that the entry in the remarks column of the R.O.R. in respect of plot no.431, Schedule-A property is wrong. The case of the plaintiffs is that the plaintiffs and defendant were members of one family. As dissensions cropped up, they were separated in mess and property.

(3.) The defendant entered contest and filed a written statement-cum-counter claim. The case of the defendant is that the plaintiffs and the defendant are members of joint Hindu Mitakhara Coparcenary. By means of a registered partition deed dated 012.1958, plaintiffs got the entire C.S. Plot No. 433 and C.S. Plot No. 434, Ac.0.41 dec. including the suit tank measuring Ac.0.07 dec. and an area of Ac.0.23 dec. from the northern and eastern portion of C.S. Plot No. 434 including Ac.0.02 dec. of the tank. He does not know reading and writing. Taking advantage of his illiteracy, the plaintiff no.1 managed to record their names. It is further pleaded that H.S. Plot No.430 corresponds to C.S. Plot No.434 and H.S. Plot No. 431 corresponds to C.S. Plot Nos. 433 and 434. Though the plaintiffs got Ac.0.41 dec. of tank out of C.S. Plot No.434 under the deed of partition, the area corresponding to H.S. Plot No. 430 has been wrongly recorded as Ac.0.45 dec. in the names of the plaintiffs. The same includes Ac.0.02 dec. of tank in C.S. Plot No. 434 allotted to the defendant in the partition deed. He objected before the settlement authorities against wrong recording of the names of the plaintiffs. He has right, title and interest over Ac.0.02 dec. of tank appertaining to H.S. Plot No. 430 described in Schedule-A. With this factual scenario, he prayed, inter alia, for declaration of title, confirmation of possession or in the alternative for recovery of possession, in the event he is dispossessed from the tank and permanent injunction.