MADHUSUDAN SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The plaintiff has filed this appeal against the judgment of the District Judge, Pun, wherein the appellate Court after allowing the amendment of written statement set aside the judgment of the trial Court and remanded the matter to the trial Court for fresh disposal after framing new issue. It is obvious that the said judgment and order of remand was passed in purported exercised of authority under Order 41, Rule 23-A of the Code of Civil Procedure (in short, the "C.P.C.").

(2.) The plaintiff-appellant had filed O.S. No. 17 of 1983 in the Court of the Civil Judge (Junior Division}, Puri, for a decree of permanent injunction restraining the respondent, i.e., the State of Orissa, from raising any construction on the disputed land and from interfering with the possession of the plaintiff and encroaching upon any part of the disputed land. It is the case of the plaintiff mat the disputed land originally belonged to Dakshinaparswa Math and was the "Amrutamanohi" land of Lord Jagannath and the Mahant of the Math was the marfatdar in respect of the land. It is claimed that after the plaintiff was inducted as tenant for horticultural purpose and tenancy was created by delivery of possession and acceptance of rent, a lease deed had been executed on 10.10,1938. It is further claimed that the plaintiff after the death of his father continued in possession by paying rent to the ex-landlord and after vesting of the ex-intermediary estate on 18.3.1974, the plaintiff continued as a tenant and such right was recognised in O.E.A. Misc. Case No. 276 of 1981. It is further claimed that while the plaintiff wanted to raise the boundary wall, he was obstructed by police officials who claimed right over the disputed land.

(3.) In the original written statement, the defendant denied the allegations made in the plaint and stated that the father of the plaintiff was not inducted as a tenant, nor any tenancy right had been created. It was also pleaded mat the order in O.E.A. Misc. Case No. 276 of 1981 had been obtained fraudulently by influencing the Revenue Inspector and the plaintiff had no right over the disputed land