GOPAL MEHER Vs. DALA BARIHA

JUDGEMENT

(1.) The defendants have carried this appeal against the reversing judgment and decree of the learned Subordinate Judge, Bargarh. The plaintiffs filed the suit on 22-1-68 asking for declaration of title and confirmation of possession; alternatively for recovery of possession in the event of a finding that they were out of possession. They pleaded (hat their father Arakhita Bariha had title to the property and his name had been recorded in the Hamid Settlement. After him, the plaintiffs succeeded to the property and were in possession. Jayasingh, one of the brothers who had joint interest, did not join the plaintiffs and was, therefore, impleaded as a defendant. Following abolition of the estate where the disputed property was included, the intermediaries laid claim under Chapter II of the Orissa Estates Abolition Act (hereafter referred to as the Act) and the plaintiffs raised objection to such claim for settlement. In Estates Abolition Case No. 11/5-138 of 1962-63, the Collector under the Act passed the following order on 12-3-63:--

(2.) Defendants 1 and 2 filed a joint written statement maintaining that Arakhit was merely a Sikimi tenant but he had given up possession by 1926-27 and the father of the defendants had remained in possession of the land thereafter. They contended that the claim for settlement had been made under the Act and the Tahasildar acted without jurisdiction in directing settlement of the disputed property with the plaintiffs. The plaintiffs were never in possession and at any rate, no settlement could have been made u/Section 7 of the Act with them. The claim laid in the suit, therefore, was not maintainable.

(3.) The trial court dismissed the suit on a finding that both parties were trespassers over the suit land and the plaintiffs were, therefore, not entitled to any relief.