LABANYA DEBI Vs. GOVINDA MALIK

JUDGEMENT

(1.) In this civil revision, the defendants NOS. 1, 2, 4 and 5 are the petitioners in revision, directed against an order of the learned Subordinate Judge, Dhenkanal, in T. S. No. 32 of 1955 rejecting the objections filed by the said defendants who are the petitioners in the present application and accepting the report of the Commissioner appointed in the said Court.

(2.) The dispute arose out of an alleged mistaken identity of certain plots of land -- due to bo delivered to one Gobinda Malik in execution of a decree in a partition suit filed by him, --with certain other plots presumably due to confusion of the successive Commissioners appointed in this connection as hereinafter fully discussed. The matter arose in these circumstances; In 1951 Gobinda Malik filed a suit being suit No. 39 of 1951 against Pitabas Mohanty and Purastam Mohanty being petitioner No. 3 herein for partition of plot No. 14/320 with an area of 3.05 acres and plot No. 14/523 with an area of 0.77 decimals in mouza Jankhira. There was a decree for partition in the said suit. In execution of the said decree in Execution Case No. 14 of 1953 for delivery of possession, the Commissioner appointed therein, wrongly gave delivery of possession to the said Gobinda Malik of two plots of land, namely, plot No. 377/598 and plot No. 377/ 599 in village Katakamada claimed by the petitioners Labanya Debi and Golak Behera. Incidentally the said villages Jankhira and Katakamada are adjoining villager. After delivery of possession to Gobinda Malik as aforesaid the petitioners Labanya Debi and Golak Behera filed Misc. case Nos. 57 and 58 of 1953 objecting to the delivery of possession of the said plots to Gobinda Malik under Order 21, Rule 100 Civil Procedure Code and prayed for restoration of possession. In course of hearing of the said Misc. case Nos. 57 and 58 of 1953, the Court appointed a survey-knowing Commissioner to measure the land and to find out whether the said plots of land, namely plot No. 377/598 ana plot No. 377/599, which had been delivered to Gobinda Malik by virtue of the partition decree, actually appertained to the plots claimed by Labanya Debi and Golak Behra. In the said objection petition, Labanya Debi claimed that out of her lands, -- namely plot No. 376, plot No. 376/ 1632 and plot No. 377, -- a piece of land containing an area Order 87 decimals, was wrongly delivered to Gobinda Malik. The claim of Golak Behra, the other objector, was that Out of his land being plot Nos. 598 and 599, a piece of land containing an area 3.05 decimals, was wrongly delivered to Govinda Malik. The common ground of both the objectors Labanva Devi and Colak Behra was that plot No. 14/520 and plot No. 14/523 situate at mouza Jankhira, which Gobinda Malik was to get delivery of possession under the partition decree, do not correspond to plot No. 377/598 and plot No. 377/599 situate at different village Katakamada as aforesaid. In 1958 the said survey-knowing Commissioner filed his report stating that plot No. 14/520 and plot No. 14/523 do not correspond to the said plot No. 377/598 and plot No. 377/599; thus supporting the objections taken as aforesaid. The Commissioner also stated in his report that the objectors had been dispossessed from their own lands as claimed by them. On February 14, 1955 the Court in the said Misc. case Nos. 57 and 58 of 1953 made an order accepting the Commissioner's said report and restored the objectors Labanya Devi and Golak Behera to possession. This is the genesis of the subsequent litigation which followed with which the court is directly concerned in the present revision.

(3.) Thereafter in 1955 the said Gobinda Malik along with his four sons Rusia Malik, Kamadeba Malik, Birabara Malik and Gurubari Malik as plaintiffs filed a suit being Title Suit No. 32 of 1935 against the said objectors Labanya Debi and Golak Behera and four others being Pitabas Mohanty, Purustam Mohanty, Dijabar Mohanty and Hrushikesh Mohanty, the last four Mohanties being relations. In the said suit the plaintiff Gobinda Malik and his sons prayed for a declaration of Title to the said plots being plot No. 377/598 and plot No. 377/599, possession in respect of which was restored to the said objectors, - on the ground that the said plots correspond to plot No. 14/520 and plot No. 14/523, which Gobinda Malik was to get delivery of possession in execution of the decree obtained by him in the said partition suit No. 39 of 1951 as aforesaid. In the Title Suit No. 32/1956 the defendants Labanva, Golak and others filed written statement taking the defence that the said two plots -- Plot No. 14/520 and plot No. 14/523 -- did not correspond to plot No. 377/598 and plot No. 377/599 which were wrongly claimed by Gobinda Malik and others in the said Title Suit; and that these plots were distinct plots from the plots claimed by them. On November 28, 1956 a writ of commission was issued by the Court in the said Title Suit No. 32 of 1955 again to a survey-knowing Commissioner, to determine, by measurement, whether the two plots correspond to the other two plots as aforesaid. On March 29, 1957 the Commissioner filed his report stating that the two plots correspond to the other two plots and further that out of the area of the plots 377/598 and 377/599, -- the petitioner Labanya Debi has been in possession of land containing an area of 1 acre and 62 decimals. On May 9, 1957 Labanya and Golak filed objections to the Commissioner's said report dated March 29, 1957 on several grounds, namely that no notice was issued by the Commissioner to the parties intimating when he would visit and measure the land; that measurement was not done in the presence of all the parties; that the Commissioner's report that Labanya was in possession of 1 acre and 62 decimals was beyond the scope of the enquiry; that the measurement was wrong -- the Commissioner had not taken the correct starting point of measurement. The learned Subordinate Judge on these objections examined the commissioner and heard the objections of the parties. By an order dated January 13, 1958, the learned Subordinate Judge rejected the objections and accepted the Commissioner's report. Hence this revision by the four defendants, namely, Labanya, Golak Behera, Purastam Mohanty and Dijabar Mohanty.