KIRTAN BEHARI ACHARYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Plaintiff is the appellant against a reversing decision in a suit for declaration of title and confirmation of possession over the plaint 'A' schedule property and for a direction to correct the Tenant's Ledger in favour of the plaintiff.

(2.) Briefly stated, the plaintiff's case is as follows : One Mandar Dehury had sold Ac. 0.08 decimals of land in Khaia No. 28 in mouza Dhananjayapur including the disputed land by registered sale-deed 27.10.1941 to the plaintiff and delivered possession. The plaintiff continued to remain in possession of the disputed 'A' schedule property. Subsequently, the plaintiff discovered that the disputed land had been recorded in the name of Kapileswar Mahadev, and the ex-proprietor of Sukinda had submitted the Tenancy Ledger in the name of the aforesaid deity. The plaintiff enquired from the Raja of Sukinda who was the ex-proprietor and the latter had executed a registered Nadabi Patra on 23.5.1978 in respect of 'A' schedule property in favour of the plaintiff. The plaintiff produced the registered sale-deed dated 27.10.1941 and the Nadabi patra before the defendants for correction of the Tenancy Ledger, but of no avail.

(3.) Defendants 1 and 2 took the plea that the suit was bad for non-joinder of parties as the deity, Kapileswar Mahadev had not been impleaded. Apart from taking 'other technical pleas such as bar of limitation, improper valuation and lack of proper notice the defendants denied the allegations made in the original plaint. In paragaraph 8 of the written statement while describing the real facts of the case, it was pleaded that Holding No. 28 with an area of Ac. 4.08 decimals had been recorded in the current settlement Record-of-Rights in the names of Mandar Dehury and Chakra Dehury as tenants and the ex-Raja of Sukinda was the proprietor and was also the Marfatdar of the deity Kapileswar Mahadev. The suit lands were dedicated to the deity Kapileswar Mahadev and out of the undisputed land Ac. 1.30 decimals had been carved out in the name I of Hadi Munda and Ac. 0.67 decimals had been kept under Holding No. 28 in the name of one Rusi Nayak and rent was being realised accordingly. It was alleged that the disputed land belongs to the deity and before vesting of the estate of Sukinda, the Raja who was i Marfatdar of the deity, used to cultivate ; disputed land through Sanja tenants and usufructs were being used for sevapuja of the deity. It was further claimed that after vesting, the Government is discharging the functions of the Marfatdar since 1952 and the deity is in possession of the disputed land through its Sanja tenant, Mina Munda and defendants 1 and 2 being in charge of management of the deity have been realising Sanja dues from Mina Kunda and spending the same for sevapuja of the deity and the plaintiff was never in possession of the disputed land. It was further stated that the Raja of Sukinda had no interest in the property of the deity, after vesting of the property in 1952 and had no right to execute any Nadabi Patra and the sale-deed and the Nadabi Patra were nominal, invalid and did not confer any title.