KAMALA MALLIK Vs. STATE OF ODISHA

JUDGEMENT

(1.) This is a plaintiffs' appeal against confirming judgment in a suit for declaration of title by way of adverse possession.

(2.) The case of the plaintiffs is that sabak khata no.1, sabak plot no.418 of mouza-Demal was recorded in the name of the Raja of Aul, ex-landlord. The father of the plaintiffs belonged to scheduled tribe. He had no landed property. He approached the exlandlord to lease out the suit land in his favour. The ex-landlord orally permitted him to construct a residential house over a portion of the land and cultivate the rest portion. He was in possession of the land since 1932. He had constructed a residential house over a portion of the land and cultivated the vacant land. While the matter stood thus, the estate vested in the State in the year 1957. During settlement operation, he requested the settlement authorities to record the suit land in his name. The settlement authorities made an enquiry and found that he was in possession of the land. The Amin submitted report on 8.1.1979. The settlement authorities had issued draft khatian in his name. But then the final ROR had been wrongly published in the name of the State. Their father died in 26.10.1980. While the matter stood thus, the Tahasildar, Aul, defendant no.2, initiated encroachment case against them. Taking advantage of the wrong recording, the defendant no.2 intended to lease out some portions of the land to other persons. The B.D.O., Aul, defendant no.3, took steps to construct a road over a portion of the suit land. They have approached the defendant no.2 number of times to settle the suit land in their favour. But the defendant no.2 did not pay any heed. Their father was in peaceful and continuous possession of the suit land. Thereafter they are in possession of the land peacefully and continuously and as such acquired title by way of adverse possession. Plaintiffs further assert that Dhaneswar Mallik and others had instituted T.S. No.129/84 against the State in respect of a portion of sabak khata no.1, sabak plot no.418 in the court of learned Munsif, Kendrapara. The suit was decreed on 14.10.1988. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

(3.) The defendants were set exparte. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf twenty-one documents had been exhibited. Learned trial court dismissed the suit holding that the plaintiffs have not perfected title by way of adverse possession. Unsuccessful plaintiffs filed R.F.A. No.35/22 of 2013 before learned Additional District Judge, Kendrapara, which was eventually dismissed.