D. Dash, J. - (1.) This appeal has been filed against the judgment and decree passed by the learned Ad hoc Additional District Judge, Khurda in Title Appeal No. 41/07 of 2003/2001. Said appeal was filed by the plaintiff against the dismissal of his suit i.e., T.S. No. 04 of 1998 by the learned Civil Judge (Jr. Division), Khurda. The lower appellate court having allowed the appeal by setting aside the judgment and decree passed by the trial court, the unsuccessful defendant is now before this Court in the second appeal.
(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.
(3.) The suit is filed with the relief of declaration of title of the plaintiffs over the suit land and permanent injunction restraining the defendant from interfering with the peaceful possession so far as the suit land is concerned. The suit land measures Ac. 0.045 decimals under Hal plot No. 1271 and part area of Ac. 0.005 decimals out of Ac. 0.040 decimals of land from plot No. 1272. It is stated that land under sabik plot No. 1116 and 1117 stood recorded in the name of Banchhanidhi Harichandan, Antaryami Pahadasingh, Ramakrushna Jagadeba. Ramakrushna Jagadeba was having separate possession of land under sabik plot No. 1116 and so far as the rest two are concerned, it was in respect of land under sabik plot No. 1117. The plaintiff is the son of Ramakrushna and the defendants are the successors-in-interest of Banchhanidhi and Antaryami. Land under sabik plot No. 1116 was measuring Ac. 0.005 decimals and plot No. 1117 was measuring Ac. 0.030 decimals. It is stated that in the mutual partition between above three co-owners, land under sabik plot No. 1116 had fallen to the share of Ramakrushna, whereas the other one under plot No. 1117 to the share to rest two namely, Banchhanidhi and Antaryami. It is also stated that as per the said arrangement each were possessing separately and accordingly note of possession found mention in the sabik record of right. It has been alleged that when sabik plot No. 1116 was assigned as plot No. 1271 in the hal settlement, there has been reduction of area from Ac. 0.050 decimals to Ac. 0.045 decimals and that reduced area of Ac. 0.005 decimals to the south was wrongly included in plot No. 1272. The plaintiffs of course claims to be in possession of that extent of land measuring Ac. 0.050 decimals using as threshing floor and paying rent for the same having a thatched house over that Ac.0.005 decimals of land to the south of plot No. 1271 which has been included in plot No. 1272. Thus, it is stated that with such state of the recording, there arose discord between the parties, when the defendant wanted to purchase Ac. 0.005 decimals from the plaintiff and it was agreed. So, a Panchayati had been convened in the village where though the plaintiff with much reluctance agreed but the sale could be materialized due to the arrogance of the defendants. It is stated that thereafter the defendant forcibly occupied that very land extending to Ac. 0.005 decimals for which information being lodged, there had arisen a proceeding under section 144 Cr.P.C. and then finally, the suit has been filed.;