KAMAL KUMARI DEVI Vs. RAJANI ROUTRAY

JUDGEMENT

(1.) The facts giving rise to the present Miscellaneous (Second) Appeal under Order 21. Rule 103. Code of Civil Procedure (in short, the "C.P.C.") are as follows : The present respondent as plaintiff filed O.S. No. 116 of 1982 in the. Court of the Munsiff. Bhubaneswar, against the present appellant and her husband for permanent injunction in respect of plot No. 195 of the Settlement Record of Rights of the year 1962 with an area of Ac. O.115 decimals. The said plot corresponds to a portion of'plot No. 221 of 1929-1930 Settlement, in the said suit, written statement was filed by the two defendants denying the right, title and interest of the plaintiff. During pendency of the said suit, the present respondent filed H.R.C. Case No. 24/ 83 for eviction of tenant allegedly occupying the disputed house said to be standing on plot No. 195. An ex parte order of eviction was passed in the said House Rent Control proceeding. The present respondent levied Execution Case No. 5/84 and purported to obtain possession and forcibly dispossessed the present appellant. In view of the forcible dispossession, the present appellant filed Misc. Case No. 67/84 under Order 21, Rule 99, C.P.C. In the said application the appellant's case is as follows :- She is owner of plot No. 196 and plot No. 195 is to be adjacent South of plot No. 196. The house was, in fact, constructed on plot No. 196 by the appellant and her husband. In the suit filed in respect of plot No. 195, interim injunction prayed for by the present respondent (who was the plaintiff in the said suit) had been refused on the ground that the house stood on plot No. 196 and not plot No. 195. The right of the present respondent over plot No. 195 was also denied. It was stated that initially one Souri Devi had purchased Ac. 0.220 decimals out of Ac. 0.590 decimals appertaining to plot No, 222 and Ac. 0.242 decimals out of plot No. 251 by registered sale deed dated 28.9.1951. Subsequently, the said Souri Devi mortgaged the said purchased property in favour of one Lava Devi alias Nava Dei. Lava Dei filed mortgage suit No. 88/479 of 1956/54 and in execution of the mortgage decree, Lava Dei purchased the mortgaged property in Court auction. However, while filing the mortgage suit, in place of plot No. 251, plot No. 221 was wrongly mentioned as the suit property along with the undisputed plot No. 222 and accordingly in the Sale Certificate by mistake plot No. 221 was mentioned in place of plot No. 251. In spite of such wrong description of plot number, actually possession of Ac.0.242 decimals from plot No. 251 had been delivered. Subsequently, on 4.4.1959, Lava Dei sold the property purchased by her to the husband of the present, respondent again wrongly mentioning the plot number as 221. However, possession was delivered in respect of plot No. 251 and not plot No. 221. It is stated that the total area of plot No. 221 in the sale deed was indicated to be Ac.0.624 decimals, whereas actually the total area of plot No. 221 was Ac.0.821 decimals and the total area of plot No. 251 was Ac.0.624 decimals. Similarly, in the sale deed. the western boundary of the purchased portion was shown to be "public road". As a matter of fact, to the immediate west of plot No. 251 is the public road, whereas, the said public road is to the east of plot No. 221. It was further stated that the husband of the present respondent had sold Ac.0.126 decimals from the purchased property to one Bhabagrahi Jena and Nanda Kishore Jena, wherein again "public road'was shown to the west of the land sold. In other words, it was claimed that though in the mortgage suit and the decree, plot No. 221 was shown to be the property mortgaged, the boundaries given relate to plot No. 251 which was the property initially purchased by Souri Devi and mortgaged to Lava Dei.

(2.) It is to be noted that the aforesaid plea was also the specific plea of the present appellant and her husband in the written statement filed in O.S. No. 116/82 filed by the present respondent. Thus, from a reading of the objection under Order 21, Rule 99, C.P.C, it is apparent that the Objector was raising two objections: firstly, the disputed house was on plot No. 196 belonging to her and secondly, , the respondent in the appeal who had obtained the ex-parte decree in the House Rent Control Proceeding in respect of plot No. 195 had, in fact, no right over plot No. 195 and the said plot No. 195 belonged to the husband of the present appellant.

(3.) During the pendency of the proceeding, a survey-knowing Commissioner had been deputed who reported that the disputed house stood on plot No. 195 and not on plot No. 196. Both the Courts below have negatived the contention of the present appellant on the ground that she was claiming right over plot No 196. but the disputed house stood on plot No. 195. It is to be noticed that in the connected suit which was earlier filed by the present respondent, wherein the present appellant and her husband were parties, the claim of title of the present respondent in respect of plot No. 195 was concurrently nagatived by both the Courts below. It was found in the said suit that as a matter of fact, originally Souri Devi had purchased Ac.0.242 decimals from plot No. 251 and the said property had been mortgaged to Lava Dei. It was further found in the said suit that as a matter of fact, a wrong plot number had been indicated in the mortgage suit filed by Lava Dei, but the bondaries given in the said suit clearly relate to plot No. 251 and not plot No. 221.