Decided on January 31,1973



- (1.) THE defendants, who were respondents 1 to 12 in the Court below, have preferred this second appeal against the decision of the Additional District Judge, cuttack in Title Appeal No. 142 of 1967 reversing the decision of the Second munsif, Cuttack in Title Suit No. 246 of 1961.
(2.) THE plaintiff's case In short is that one Sana Das was the father of de-fendant no. 10. and he was recorded as the tenant in respect of the suit lands comprising an area of Ac. 1. 93 decimals in Khata No. 194, specifically described in the schedule of the plaint. The above-named Sana Das Possessed the suit lands till his death in 1945. Thereafter defendant No. 10, the daughter of Sana Das, succeeded to the suit property as the only heir and successor of late Sana Das. She sold the suit property to the plaintiffs along with some other properties by a registered sale deed dated 18-12-1956 and delivered possession of the same to the plaintiffs. The plaintiffs remained in possession of the suit lands, but in the year 1958 defendants 1, 2 and 5 with the help of a large number of Gundas trespassed into the suit lands, cut and removed the ripe paddy crops raised thereon by the plaintiffs, for which a case under Section 379 I. P. C. was filed against these defendants. The trial Court acquitted these defendants on their plea as specifically stated in the plaint, to be referred to later in this judgment. According to the plaintiffs Sana Das was an illiterate Person he was possessing the suit lands on his own right and he never executed any Nadavi deed in favour of the landlords. The defendants were the ex-proprietors of the Mahal till the touzi, in which the suit lands are situated, vested in the Government of Orissa. The defendants have had no title to or possession over the suit lands. Mainly on the above averments the plaintiffs inter alia pray for a declaration of their title to and for confirmation of their possession over the suit lands. They further pray that in case the plaintiffs are found to have been dispossessed from the suit lands during the Pendency of the suit, a decree for recovery of possession of the suit lands in their favour may be passed. They also pray for the issue of a permanent injunction against the defendants restraining them from interfering with the plaintiffs' possession of the suit lands in any manner.
(3.) THE case of defendants 1 to 9, who filed a joint written statement, shortly stated, is that their ancestors got the suit lands recorded Benami in the name of sana Das, one of their servants, to avoid certain complications. Subsequently a nadavi deed was taken from the above-named Sana Das in April, 1934. According to them neither Sana Das nor his daughter, defendant No. 10 ever possessed the suit-lands and they never paid any rent for the same. The defendants paid rent after the abolition of the Zamindary and possessed the suit lands as before. Plaintiff No. 3 filed a criminal case against some of these defendants on the strength of a collusive Kabala executed by defendant No. 10 in favour of the plaintiffs, but the accused persons were acquitted in that case. It is alleged that sana Das had no title to the suit lands, and even assuming that he had any title to the same that was lost on account of his discontinuance of possession for more than 12 years. They also aver that they are in Possession of the suit lands for more than 12 years to the knowledge of evervbody. and so they have acquired good title to the same by adverse possession. It is also alleged that the ancestors of the defendants since long dispossessed Sana Das and accordingly his heirs and successors never possessed the suit lands, and so the plaintiffs cannot have any remedy in this suit, and this suit is barred by limitation.;

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