DUKHANA BEHERA Vs. PRABALA KHATUA
HIGH COURT OF ORISSA
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D.Dash, J. -
(1.) The appellant in these appeals under section 100 of the Code of Civil Procedure (for short, "the Code") has assailed the common judgment dated 08.11.1996 passed by the learned District Judge, Balasore-Bhadrak followed by decrees in S.J. Appeal Nos.80 and 81 of 1993.
The respondent, as the plaintiff, had filed Title Suit No.318 of 1988 in the court of learned Munsif, Balasore (as it was then) and Title Suit No.137 of 1988 in the Court of the learned Sub-Ordinate Judge, Balasore (as then was). Both the suits being tried analogously in the court of learned Sub-Ordinate Judge, those have been disposed of by common judgment dated 07.10.1993 followed by decrees.
Title Suit No.318 of 1988 re-numbered as Title Suit No.252 of 1990 after its transfer to the Court of Sub-Ordinate Judge stood decreed confirming the possession of the respondent-plaintiff over the suit land described under schedule-"Ka" of the plaint therein and the appellant-defendant was restrained from interfering with the same.
The other title suit, i.e, Title Suit No.137 of 1988 was decreed in part declaring the plaintiff-respondent's right, title and interest over the land described in schedule-"Kha" of the plaint therein, restraining the appellant-defendant from changing its nature and character and directing him to deliver the possession of the same to the respondent-plaintiff within a time frame and on failure for recovery through process of court by removing the standing house and structure over the land.
The defendant thus having suffered from the above judgment and decrees and aggrieved by the same filed two appeals under section 96 of the Code, i.e., S.J Appeal No.80 of 1993 and S.J. Appeal No.81 of 1993 in challenging the judgment and decrees passed in the above noted suits. Those appeals have also been dismissed. The judgment and decrees passed by the trial court thus have been confirmed.
Both these appeals before this Court having arisen out of common judgment followed by decrees passed by the lower appellate court as well as the trial court; accepting the submission of the learned counsel for the parties, those have been heard together for their disposal by this common judgment.
(2.) For the purpose of convenience and clarity; the parties hereinafter have been referred to in the same rank as assigned to them in the original suit, namely, the appellant as the defendant whereas the respondent as the plaintiff.
(3.) The plaintiff's case is that the defendant was the original owner of the schedule-"Ka" property as per the description given in the plaint of T.S. No.137 of 1988 in total measuring Ac.0.70 decimals which he had inherited. He on 22.02.1955 sold the said land in schedule-"Ka" by a registered sale deed. It is stated that after execution of the said sale deed and its registration, the plaintiff was put in possession over the suit land. One part of the land was of Tala kisam which the plaintiff after purchase began to cultivate as it was being earlier so done by the defendant and also enjoyed the benefits from the small pond over it. It is further stated that in course of time, she made a part of it fit for homestead and started growing vegetables.
Further case of the plaintiff is that when the Major Settlement Operation began, she having fallen ill could not look after the matter relating to the recording of the land and, therefore, entrusted the defendant to do the needful in the matter on her behalf. The defendant, however, practiced fraud and cheated her. It is alleged that by influencing the Settlement Authority, the defendant got part of the schedule-"Ka" land measuring Ac.0.14 decimals of Tala kisam as specifically described in schedule-"Kha" of the plaint of T.S. No.137 of 1988, recorded in his name. The plaintiff claims that it was without her knowledge. Having heard from some other persons about such manipulation in the record of right in the Major Settlement with regard to Ac.0.14 decimals of land under schedule-"Ka", she on 10.03.1988 obtained the certified copy of the record of right which had been finally published in Major Settlement and then only, she was confirmed about said mischievous activities of the defendant in creating record of right of the land in his name in a fraudulent manner by gaing over the Settlement Authority, when he himself had sold the land to the plaintiff and delivered possession of the same to her.
The above suit having been filed on 11.05.1988, by an amendment on 08.02.1993, it had been introduced in the plaint that in the year 1990, the plaintiff having fallen ill, had gone to her in-laws house at Salagadia in the district of Midnapur in the State of West Bengal and remained there for better care and treatment. During that period, within a month from 25.05.1990 onwards, taking advantage of the absence of the plaintiff, the defendant in order to create evidence in support of his false claim, put up one mud walled house consisting of three rooms over that portion of Tala land which had been developed by the plaintiff measuring Ac.0.14 decimals. According to the plaintiff's case, there was no house over the said land at any time before and defendant has his permanent house on the land which situates to the south of the said land under schedule-"Kha" and that is under hal khasara 397 measuring Ac.0.05 decimals.
It is pertinent for clarification to state that the prayer for declaration of right, title and possession etc in this suit is in respect of schedule-"Kha" property measuring Ac.0.14 decimals was under khata no.102 under plot no.300 (threshing floor) as per previous settlement and that is presently under Hal khata no.115 and plot no.396 (Bari). The suit filed in the court of Munsif which later came to the court of Sub-Ordinate Judge is one for permanent injunction and there, the prayer is with respect to the land measuring Ac.0.56 decimals which is the land in schedule-"Ka" minus the land under schedule-"Kha" and in exclusion of the same, as per the description given in the plaint of T.S. No.137 of 1988 as at schedule-"Ka".;
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