DAITARI NAIK Vs. HADU GOUNTIA
HIGH COURT OF ORISSA
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Narasimham, J. -
(1.) THIS is Defendant's second appeal against the Appellant judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bamra and decreeing the Plaintiff's suit for recovery of possession of the suit lands and for other consequential reliefs.
(2.) THE suit lands extend over an area of 18.13 acres in village Purunapani and during the last settlement in Bamra State (1927) they were entered as bhogra lands appertaining to khata No. 77 of the village assessed to a rental of Rs. 22/2/11. The Plaintiff is the Gountia of the village. His case was that the bhogra lands were impartible and inalienable but that by virtue of the decisions of two Civil Courts in Civil Suit No. 1/101 of 1927 -28 (Ext. 1) and Civil Suit No. 39/1939 -40 (Ext. 2) the Defendant's mother Kamala was allowed to possess the same during her life time. She died on 5 -10 -45 and thereupon the Plaintiff tried unsuccessfully to recover possession and then was compelled to bring the present suit. The main defence taken by the Appellant was that he possessed the suit lands in his own right and title as raiyati lands on payment of rent to the Plaintiff Gountia for nearly 47 years and that consequently his title had been perfected by adverse possession. He did not claim the suit lands as the success -in -interest of his mother Kamala. It was, therefore, contended on his behalf that the judgments in the aforesaid suits recognising the life interest of Kamala would not bind him.
(3.) AT this stage it will be useful to narrate certain admitted facts. The Plaintiff is the paternal grandson of one Raghunath whose uterine younger brother was one Dharam Singh. Dharam Singh's daughter was Kamala and the Defendant is her son. Sometime in 1900 or 1901 Raghunath who was the then Gountia of the village partitioned some of his bhogra lands and gave the suit lands to his brother Dharam Singh. This partition was approved by the then Ruler of Bamra State Sir Sudhal Deb. Sometime later Dharam Singh gifted away the property to his daughter Kamala in absolute right. During the settlement operations in Bamra State in 1927 dispute arose between the Plaintiff and Kamala regarding the suit lands; but with the consent of the Plaintiff the Asst. Settlement Officer on 14 -5 -27 recorded the suit lands as bhogra lands of the Plaintiff with a note in the remarks column to the effect that Kamala was in possession of the same and that she would remain in possession during her life time. While the settlement operations were proceeding the Plaintiff brought a suit (C.S. No. 1/101 of 1927 -28) against the Defendant his grandfather Dharam Singh and others claiming the suit lands as his absolute property. Strangely enough in that suit he did riot implead Kamala as one of the parties. The Defendant contested the Plaintiff's claim alloying that he was in possession of the suit lands as a raiyat. The judgment of the Civil Court (Ext. 1) was pronounced on 20 -6 -27 and the Court, being mainly influenced by the order of the A.S.O. dated 14 -5 -27 gave a declaration to the effect that the suit property would remain in possession of Kamala till her life time. The suit lands, however, continued to remain in possession of the Defendant who paid rent to the Plaintiff as fixed in the settlement proceedings. The Plaintiff granted rent receipts (Ext. A aeries) to him; but did not take special care to note in the rent receipts that the payment was made by the Defendant on behalf of Kamala. On the other hand, in the rent receipts the Defendant was mentioned as the 'praja' (tenant) and the name of Kamala was completely absent. In Borne of the rent receipts (Ext. A -8, A -25 & A -39) the land as described as 'bhogra' but in most of the rent receipts no description of the land was given. In 1939, the Plaintiff brought another suit against Kamala. (C.S. No. 39/1939.40) for her eviction from the suit lands. But the Civil Court dismissed that suit observing that in view of the decision in the previous suit (C.S. 1/101 of 1927 -28) the Plaintiff had no cause of action during the life time in Kamala.;
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