RANJAN MALLIK Vs. AINTHA MALLIK AND ANOTHER

JUDGEMENT

(1.) Plaintiffs are the appellants against a reversing judgment. The suit was for declaration of title, confirmation of possession or in the alternative for recovery of possession if the plaintiffs are dispossessed during pendency of the suit, for declaration that the recording of the suit land in the name of defendant no.1 and transfer the land by the defendant no.1 in favour of defendant no.2 are not binding and for permanent injunction.

(2.) The case of the plaintiffs was that the suit land belonged to plaintiff no.1. Patta was issued in his favour. The same was recorded in his name. He was in peaceful possession of the same. He used to pay rent. He constructed a dwelling house over a portion of the suit plot and resided therein. Defendant no.1 is his brother. In the hal settlement, the name of defendant no.1 had been recorded. He had no right, title and interest over the suit land. During hal settlement operation, parcha was issued in the names of the plaintiffs in respect of Ac.0.64 dec. appertaining to sabik plot no.198. Sabik plot no.198 had been bifurcated into three separate plots, i.e., hal plot nos.834, 1125 and 1126 appertaining to hal khata no.302. The plaintiff no.1 had encroached upon Ac.0.03 dec. of Government land adjoining to the east of the aforesaid plots. The said area had been included in hal plot no.834. The rest of sabik plot no.198 now corresponds to hal plot no.834/1125 and the suit plot. Taking a cue from wrong recording of the suit land, the defendant no.1 alienated the same in favour of defendant no.2 by means of a registered sale deed dated 7.3.88. The sale deed is illegal and inoperative. When defendant no.2 threatened to dispossess them, the suit was instituted seeking the reliefs mentioned supra.

(3.) The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that plaintiff no.1 and defendant no.1 are brothers. They were living in joint mess and property. Plaintiff no.1 was working as Choukidar of the village Chinara. Defendant no.1 was helping him. Plaintiff no.1 filed Choukidari Jagri Case No.504 of 1965-66 to settle Ac.2.78 dec. of land appertaining to khata no.280 in his favour in accordance with the provisions of the Orissa Offices of Village Police (Abolition) Act, 1964. In the said case, one Daitari Mallik filed objection. Ac.0.26 dec. of land appertaining to sabik plot no.205 was recorded in the names of plaintiff no.1, defendant no.1 and Daitari Mallik jointly. Daitari Mallik got Ac.0.10 dec. of land whereas plaintiff no.1 and defendant no.1 got Ac.0.08 dec. each. Sabik plot no.198, area Ac.0.61 dec. appertaining to khata no.280 was recorded in favour of plaintiff no.1 along with other Ac.2.17 dec. of land. It was further pleaded that to clear up the outstanding dues, plaintiff no.1 and defendant no.1 sold their homestead land measuring an area Ac.0.16 dec. to Narayan Parida and others in the year 1967-68 and constructed their residential house over sabik plot no.198. Plaintiff no.1 relinquished his title over sabik plot no.184, Ac.0.25 dec. and sabik plot no.682, Ac.0.25 dec. in favour of defendant no.1 and executed a deed of relinquishment. He agreed to execute a registered deed and delivered possession of the land in favour of defendant no.1. Plaintiff no.1 voluntarily relinquished his right, title and interest and possession over Ac.0.01 dec. of land appertaining to sabik plot no.198 which was adjacent to Ac.0.03 dec. of Government land in favour of defendant no.1 in the year 1967. The defendant no.1 was in possession of the same along with his father for a period of more than forty years. He is in possession of Ac.0.04 dec. of land peacefully, continuously and with the hostile animus to the plaintiffs and as such perfected title by way of adverse possession. The settlement authorities recorded the land in favour of defendant no.1. Since the defendant no.1 was in need of money to clear up the outstanding dues, he applied for permission under Sec.22 of the Orissa Land Reforms Act, 1960 before the Sub- Divisional Officer, Nayagarh to sale the land, which was registered as Misc. Case No.803 of 1987. After obtaining permission, on 8.3.1988, he sold the land to the defendant no.2 by means of a registered sale deed for a valid consideration. It was further pleaded that sabik plot no.198 was originally an area of Ac.0.61 dec. which was recorded in favour of plaintiff no.1. The defendant no.1 had perfected title over Ac.0.01 dec. of land under plot no.834/1126 corresponds to sabik plot no.198. The rest Ac.0.60 dec. of land had been recorded in favour of plaintiff no.1 in the hal settlement operation.