STATE OF ORISSA Vs. BHAGIRATHI MISHRA

JUDGEMENT

(1.) This appeal at the instance of the defendant nos.1, 2 and 4 assails the reversing judgment of learned District Judge, Cuttack in R.F.A. No.72 of 2004.

(2.) Plaintiff-respondent no.1 instituted the suit for permanent injunction restraining the defendants from interfering with his peaceful possession and mandatory injunction directing the defendants to remove the structure over the suit land. The case of the plaintiff is that he is the owner in possession of the land appertaining to Khata No.370, Hal Plot No.528, Ac.0.20 dec. of village-Paikapadapatna, Dist.-Cuttack. The land is recorded in his name along with his mother. He has been cultivating the land by using "public road" appertaining to Hal Plot No.526, admeasuring Ac.0.18 dec. The same is adjacent to his land and recorded as public road. The length of the road is about 600 kadi in East-West direction and about 30 kadi in South-North direction. The public road is being used by him as well as the public to enter into their own land since more than 30 years. When the defendant nos.1 to 3 constructed a pucca building encroaching upon the said road covering the entrance of the plaintiff and others by closing the only way to his land, he instituted the suit seeking the reliefs mentioned supra.

(3.) The defendant nos.1, 2 and 4 filed written statement denying the assertions made in the plaint. Case of the defendant nos.1, 2 and 4 is that the suit is barred by misjoinder and non- joinder of necessary parties. Since the year 1959, Narasinghpur Block Colony was established over Plot No.526. The Block Colony has been surrounded by a compound wall with one iron gate in front of it towards East. The said gate is locked at night in order to prohibit the general public from entering into the colony. The plaintiff has never used the said road. The suit land is the approach road from Block Office to Block Colony. The Block officials are using the said road from time to time. The suit plot is in exclusive possession of the Block staff. The plaintiff and the public are using a separate road to enter into their paddy field. The defendant no.3 was set exparte.