PAIDHICHETTY VISWANATHAN Vs. EXECUTIVE OFFICERN A C

JUDGEMENT

(1.) Plaintiff is the appellant against a reversing judgment in a suit for declaration of title over a strip of land measuring 2'6" x 23' adjoining south of plaintiff's holding No. 81 of Ward No. 8 and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit land.

(2.) The defendants are the Executive Officer and the Chairman of the Notified Area Council, Gunupur. According to the plaint case, plaintiff's father and his cousin brother purchased a piece of land sometime in the year 1936 measuring 135'3" x 23' and sold to one Ladi Appana towards the extreme south. The remaining portion was divided in a family partition in the year 1958 and plaintiff's share fell to its extreme south. The Notified Area Council assessed the shop building The plaintiff also constructed a verandah over the land which was left while constructing the building. On 6-9-1975 the Notified Area Council issued a notice to remove the aforesaid verandah and on 6-10-1975, the said verandah was forcibly demolished on the ground that it was an encroachment on the Notified Area Council drain. Hence the present suit for declaration of title and for injunction. It has also been averred in the plaint that plaintiff's father had filed a suit in the Court of the Subordinate Judge, Jeypore, being O. S. No. 44 of 1946 against the Union Board and another person named Karunakar Behera in whose favour the Union Board has granted a lease and in that suit for declaration of right, title and interest, the Union Board conceded to the plaintiff's right and cancelled the lease granted to Karunakar who contested the suit, but lost both in the Trial Court as well as in the High Court in the First Appeal No. 49 of 1949. On 4-2-1954 delivery of possession of the suit land was given to plaintiff's father by the process server of the Court of the Munsif, Gunupur, in Execution Case No. 8 of 1953. Plaintiff was continuing to remain in peaceful possession until the Notified Area Council gave notice on 6-9-1975 to remove the alleged encroachment.

(3.) The defendant's case is that the Municipality road runs to the adjacent south of the plaintiff's building and is six feet in width and plaintiff unauthorisedly constructed over the said road encroaching 21/2' width and, therefore, after giving due notice, the encroachment was removed. It has been further pleaded that the suit is not maintainable as statutory notice on the Municipality under the Orissa Municipal Act has not been given.