NITYANANDA PATTNAIK Vs. BISAKHA DEI

JUDGEMENT

(1.) This is defendants' appeal against a confirming judgment.

(2.) Plaintiff-Respondent instituted the suit for permanent injunction. Briefly stated the case of the plaintiff is that the suit property is the stitiban property of the deity Siri Sri Brajabihari Dev. One Nityananda Pattnaik was a sikkim tenant. There was a house over it. He was residing therein with his brother, Chaitanya Pattnaik. He acquired occupancy right over it under Sec.236 of the Orissa Tenancy Act. The sikkim right was heritable and transferable as per the customs. Giridhari, s/o-Nityananda Pattnaik and the successors of Chaitanya Pattnaik sold the land along with other lands to Biswanath Ray by means of a registered sale deed dated 12.5.58 vide Ext.3. Thereafter, Biswanath Ray sold the land to the plaintiff by means of a registered sale deed dated 11.8.58 vide Ext.5. Since the date of purchase, the plaintiff is in possession over the suit land as a sikkim tenant. In the year 1960, Damodar Pattnaik, natural father of defendant no.1, created disturbances in her peaceful possession, for which, proceeding under Sec.145 Cr.P.C. was initiated. By order dated 29.11.60, the Executive Magistrate, Khurda held that the plaintiff was in possession over the property. Thereafter Damodar along with defendant no.1 and others instituted O.S. No.92/61-I in the court of learned Munsif, Khurda for recovery of possession of the suit land. The suit was dismissed. The unsuccessful plaintiffs filed appeal. The same having been dismissed, they filed second appeal before this Court. But they withdrew the second appeal. Thereafter the defendants tried to forcibly dispossess her from the suit land. She initiated a proceeding under Sec.144 Cr.P.C., which was terminated after 60 days. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

(3.) The defendants filed written statement denying the assertions made in the plaint. Case of the defendants was that the deity Brajabihari Dev was the recorded owner of the suit property through marfatdar, Ramachandra Chhotray. Nityananda Pattnaik was the elder brother of Ramachandra's brother-in-law. Since Ramachandra was a minor, Nityananda was looking after him. Nityananda was working as a Clerk in Khurda Khasmahal office. He managed to record the suit land in his favour as sikkim tenant in Khasmahal record though he was not a tenant. He died in the year 1906. Ramachandra had inducted his son-in-law, Damodar as sikkim tenant, who was residing in the suit house and paying rent. While the matter stood thus, the plaintiff's husband had filed Objection Case No.2794/60 before the settlement authority in the year 1960 to record the plaintiff's name. The same was rejected. Damodar's name was recorded. Plaintiff filed Appeal No.317 of 1960. The same was dismissed. ROR was published in the year 1962 vide Ext.E in the name of Damodar Pattnaik as sikkim tenant. Damodar surrendered Ac.0.18 dec. of land in favour of the deity. Thus the deity became the owner of the property. Defendant no.1 as the marfatdar of the deity leased out an area Ac.0.18 dec. of land to defendant nos.2 to 6 on 17.11.1980 vide Ext.C. The rest portion of the suit property was in possession of Sri Jagadananda Pattnaik and others, legal heirs of Damodar Pattnaik.