PURNA CHANDRA NAYAK Vs. NISAKAR NAYAK

JUDGEMENT

(1.) IN this writ petition, the Petitioners challenged the order dated 19.10.2009 passed by learned Civil Judge (Junior Division), 1st Court, Cuttack in C.S. No. 89 of 2003 rejecting the petition under Order 6, Rule 17 Code of Civil Procedure

(2.) OPPOSITE party as Plaintiff filed the aforesaid suit against the Petitioners Defendants for permanent and mandatory injunction in respect of suit land. As per his case consolidation plot No. 1110 measuring an area of Ac 0.05 decimals under Khata No. 397 corresponding to settlement plot No. 1102 Khata No. 489 was under the possession of Pramila Nayak, Sita Nayak, Sarat Kumar Sendha and others. In an amicable settlement the said plot was allotted to Pramila Nayak, Sita Nayak and Sarat Kumar Sendha over which Pramila Nayak had 8 annas share and both Sita Nayak and Sarat Kumar Sendha had 8 annas share. Plaintiff purchased Ac.0.02 decimals 5 Kadis of land on the southern side of the said land through the Registered sale deeds dated 15.12.2009 and 15.4.2003 for a consideration of Rs. 3,750/. The Petitioners Defendant illegally and forcibly uprooted the green fence and made a pucca construction over the western side measuring 15 x 140 kadis of the said land, as such he filed the suit for mandatory injunction for pulling down the illegal construction made by the Defendant Petitioners and for permanent injunction. The Defendant Petitioners in their written statement contended that in 1929 ROR the disputed land was recorded in the name of Govinda Chandra Nayak and Laxman Nayak. Govinda Chandra Nayak sold his share to Panchanan Sahu. In 1970 ROR the said land was recorded in the name of Muralidhar Nayak, Bansidhar Nayak, both sons of Laxman Nayak and Panchanan Sahu. Bansidhar Nayak died unmarried leaving behind his brother Muralidhar Nayak and as such the interest of Bansidhar Nayak over the said land devolved upon Muralidhar Nayak. So, Panchanan Sahu and Murlidhar Nayak had equal share in the said property. During the life time of Panchanan Sahu and Murlidhar Nayak, there was an amicable partition between them in. which Muralidhar Nayak was allotted Ac 0.02 decimals 5 kadis to the Northern side and Panchanan Sahu was allotted with the rest portion of the land. Panchanan Saha sold his share to Sita Nayak and Sarat Kumar Sendha. Murlidhhar Nayak orally sold his share of Ac.0.02 decimals 5 kadis of land to the father of the Defendants on 15.3.1983 and delivered possession of the same to him and after his death the Defendant Petitioners being his sons are in the possession of the same. As abundant caution, the widow of Murlidhar Nayak and his son executed a registered sale deed on 30.7.2003 in favour of the Defendants Petitioners in respect of the self same land. So, the Defendant Petitioners having valid title over the suit land are in continuous and uninterrupted possession over it since 1983 within the knowledge of all concerned including the Plaintiff.

(3.) LEARNED Counsel appearing for the Petitioners contended that the prayer for amendment of written statement should not be considered with the same strictness as prayer for amendment of plaint. The Defendant can take different grounds in his written statement. In the present case, since there was stay of further proceeding of the aforesaid suit, by order of this Court the Petitioner Defendants did not file the amendment petition earlier. Hence, he prayed to dismiss the impugned order and allow the writ petition.