KANHU CHARAN TRIPATHI Vs. LAXMIDHAR TRIPATHY

JUDGEMENT

(1.) BOTH these appeals have been heard analogously as they arise out of the same judgment of the lower appellate court and the same original suit. Defendant-2 is the appellant in both these appeals.

(2.) PLAINTIFF filed O. S. 21/61 in the court of Munsif at Anandapur for confirmation of title or possession or in the alternative for recovery of possession and for permanent injunction in respect of Ka and Kha Sch. properties. Plaintiff and defendants 1 to 10 are members of a joint family. Both the schedules Ka and Kha properties are admittedly joint family properties, but they are tenanted lands. Ka sch, property was under the Sikimi tenancy of Budhia Dehury, father of defendant- 1 and Sch. Kha property was under the Sikimi tenancy of Chinta behera, father of defendant-12. Both of them were Sikimi tenants under the joint family. These Sikimi tenants acquired occupancy rights by reason of their long possession in accordance with the tenancy law prevalent in Keonjhar State. Budhai sold his interest in Kha property on 29-1-51 to the plaintiff for a consideration of rs. 100/- under a registered sale-deed, Ext. 3. Similarly defendant-2 sold his right in Sch-Kha property to the plaintiff under a registered sale-deed, Ext. 2. After purchase, the plaintiff was put in Khas possession of these properties. Subsequent to his purchase, the plaintiff paid rent, mutated his name and was in peaceful possession of the same from 1951 till 1959. In the year 1957 defendants 1 to 5 tried to disturb his possession by forcibly entering upon the land. A criminal case was filed by the plaintiff against defendants 1 to 5 in which they were ultimately acquitted. Hence he filed the suit.

(3.) DEFENDANTS 6 to 8, 11 and 12 filed one written statement supporting the plaintiffs case. They did not, however, take any subsequent part in the litigation and were ultimately set down ex parte. D-2 alone contested the suit, though he filed a written statement jointly with defendants 1, 3 to 5, 9 and 10. His defence, in substance was that the suit was not maintainable. He raised pleas of res judicata and estoppel and also alleged that the suit is barred by limitation. He denied the allegation in the plaint that one Banamali was adopted to Hari of the second branch of the family. He further alleged that the suit-land was not tenanted land at any time. The plaintiff having described the suit-land as raiyati land in a prior partition suit No. 10/46, it is not open to him now to say that they were tenanted land and that he is purchaser from those tenants. Plaintiff's Khas possession was also denied.