GANESH DAS Vs. JAGABANDHU PRUSTI AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff 's appeal against an affirming judgment of the learned Subordinate Judge, Bhadrak, upholding the dismissal of his suit for title, confirmation of possession and recovery of damages.

(2.) THE disputed property is 61 decimals of agricultural land. The Plaintiff ' case was that the disputed property was a part of the 21 decimals on the west of R.S. plot No. 136. These 21 decimals were purchased by his father Gangadhar in the name of his mother Gouri Dei under a registered sale deed dated 23 -12 -1907, from the previous recorded owners. By another sale deed dated 17 -2 -1908, another 25 decimals of land appertaining to R.S. Plot No. 134 was also purchased. These 46 decimals stood recorded in the name of the Plaintiff 's mother. The Plaintiff, after the death of his father dug a tank at considerable expenses and by improving the remaining portion converted it in to a homestead. In the Current Settlement, these lands came to be included in plot Nos. 172 and 173. The disputed property is a part of the holding of the Plaintiff and his predecessors and he has been in possession thereof ever since the acquisition. On this property, the Samadhis of his parents exist. A plea of acquisition of title by adverse possession in case there was any defect in the title was also raised. It was alleged that the bamboo clumps standing on this property was out down by the Defendants on 2 -4 -1961 without any right, title or interest. A criminal case followed and it ended in acquittal. At that stage, upon enquiry, the Plaintiff came to find that this area by mistake got included in plot No. 175, though actually it forms a part of the Plaintiff 's holding and he has been in possession at all material times. On verification of the record it appeared that the total area of the two new plots in the Current Settlement has been shown to be 40 decimals, and 6 decimals out of his lands have been included erroneously in the neighbouring plot of the Defendants.

(3.) IN the Courts below a finding was reached that the entry in the C.S. record was a mistake and since the record itself was a mistake, the presumption arising out of it became week or was rebutted. But they found that the Plaintiff was Dot in possession and had no subsisting title. Accordingly, they have dismissed the suit. This second appeal is against the concurrent decision of the lower appellate court negativing the Plaintiff 's claim.