CHANDRA SEKHAR DAS Vs. GIRIDHARI SAHU

JUDGEMENT

(1.) Plaintiffs are the appellants against the judgment and decree of the Subordinate Judge, Athgarh, in a suit for declaration of plaintiffs' title and for confirmation of possession as well as for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs. Plaintiff No. 1 is the husband of plaintiff No. 2.

(2.) Plaintiff's case, in brief, is that the properties described under Lot. No. 1 of Schedule A of the plaint are Brahmottar Niskar land and under Lot No. 2 of the said Schedule are Pahi land. The entire land originally belonged to one Nilakantha and after his death the property devolved upon his three sons, Hari, Baraju and Madhu. Madhu had been given away in adoption and accordingly had no interest in the property of Nilakantha. Both Hari and Baraju had no issue. Hari had adopted one son called Natabar and Baraju had adopted one son called Lokanath. Natabar died issueless in 1941 leaving beind his widow Mahani and three daughters, Maguni, Ratnamuni and Swaranapata. Ratnamani is plaintiff No. 2 and her husband Chandra Sekhar is plaintiff No. 1. Lot No. 1 of Schedule A was mutuated in the names of Lokanath and Champa, who is wife of Madhu, in Mutation Case No. 822 of 1945-46 and Lot No. 2 was mutated in the names of Lokanath and said Champa in Mutaion Case No. 823 of 1945-46. Champa died leaving behind two daughters Buli and Subarna. Plaintiff No. 1 had purchased 3.84 acres of land which is fully described in Schedule B of the plaint, from Mahani, wife of Loknath, under registered sale deed dated 6-9-1957 and according to the plaintiffs' case after purchase of the said property possession was delivered to him and then he got his name mutated in respect of the said property in Mutation Case No. 245 of 1960-61. After the vesting of Brahmottar Niskar land in the State, plaintiff No. 1 made an application under the provisions of the Orissa Estates Abolition Act for settlement and for fixation of fair and equitable rent which was allowed and rent roll was issued in his name. It is the further case of the plaintiffs that rest of the land in Schedule-A was also settled in favour of plaintiff No. 2 in O.N.A. Vesting Case No. 56 of 1966-67 and Patta was issued in her name. The defendants laid claim for settlement of the Brahmottar land but their claim was disallowed by the O.E.A. Collector. So far as Lot No. 2 of Schedule-A is concerned, according to the plaintiffs, Ac.O.26 decimals of land of the said lot was mutated in the name of plaintiff No. 2 and Maguni, the sister of plaintiff No. 2, in Mutation Case No. 244 of 1960-61 and Mutation Slip had been issued accordingly. After the death of Maguni, there having no issue, plaintiff No. 2 continued in possession as the exclusive owner in respect of Ac.O.26 decimals of land. The rest Ac.O.12 decimals of land out of Lot No. 2 was under Lokanath's possession and after his death the property devolved upon plaintiff No. 2 who came into possession and thus the plaintiffs possessed the entire `A' schedule property. They are also paying rent to the Government in respect of the same and the defendants having no manner of right, title and interest over the same, started a proceeding under S.145 of the Cr.P.C. They lost in the said proceeding after fighting up to the High Court and yet thereafter they created trouble in the peaceful possession of the plaintiffs. So the plaintiffs were forced to start proceedings under S.145 of the Cr.P.C. in Misc. Case Nos. 86 and 87 of 1970. In these proceedings possession of the defendants was declared and so the plaintiffs preferred a revision, but the revision was also dismissed. Hence the plaintiffs were forced to file the suit for the reliefs already stated.

(3.) Defendants 1, 3, 4 and 5 filed a joint written statement and defendant No. 2 filed a separate written statement. According to defendant No. 2, she is the daughter and sole legal heir of late Mahadev Naik who is one of the recorded Sikmi tenants in respect of the suit property and her father having died during the pendency of the proceeding under S.145 of the Cr.P.C., she was substituted in her father's place and possession was declared in her favour along with other defendants and, therefore, the plaintiff's suit is liable to be dismissed. The stand of defendants 1, 3, 4 and 5 in their written statement is that the suit is not maintainable for non-joinder of necessary party and that the suit is barred by limitation as the same is hit by the plaintiff in Title Suit No. 21 of 1962 for eviction of the defendants from the suit land was dismissed. The allegation in the plaint that Madhu, youngest son of Nilakantha was given away in adoption was denied. According to the defendants' case, after the death of Nilakantha the property devolved upon his three sons and in the settlement of 1924-25 the properties described in Lot No. 1 of Schedule-A were recorded in the names of Champa Dibya, wife of Madhu, Loknath, son of Baraju, and Natabar, son of Harihar, each having five annas four pies share. So far as Lot No. 2 is concerned, in Mutation Case No. 823 of 1945-46, the lands were mutated in the name of Champa Bewa having five annas four pies share and in the name of Lokanath having ten annas eight pies share since he got the share of Natabar who died issueless, and a correction slip had been issued to that effect. Similarly, Champa Bewa got Ac.O.12 decimals of land and Loknath got Ac.O.26 decimals of land out of Lot No. 1 of Schedule-A. Champa's share in Lot No. 1 of Schedule-A was mutated in the name of Fakira Tripathy, son of Subarna and Bull Bewa in Mutation Cases Nos. 783 and 780 of 1945-46. It is further stated that even though plaintiff No. 1 purchased Ac. 3.84 of land out of Lot No. 1 of Schedule-A which is fully described in Schedule-B, but the said sale was never given effect to and the vendor of plaintiff No. 1 nor plaintiff No. 1 himself ever received possession of the land. With regard to the settlement in favour of plaintiff No. 1, it is alleged that the same is the outcome of fraud and the right of the recorded Sikmi tenants, Mahadev, Kesab and Dama cannot be taken away by virtue of the so-called settlement. It is their positive case that recorded sikmi tenants were in possession of the entire-'A' schedule property and after their death, their legal heirs continue to possess the same and the order of the ex-Ruler of Baramba directing eviction of the sikmi tenants in Misc. Case No. 816 of 1939.40 is illegal and had not been given effect to. The defendants also pleaded a case of acquisition of title by adverse possession.