MIR ABDUL HAMID Vs. SK. SUFFIYAN AND OTHERS

JUDGEMENT

(1.) This is plaintiff's appeal against a confirming judgment in a suit for declaration of right, title and interest, recovery of possession and for permanent injunction.

(2.) Plaintiff'S case is that the suit land originally belonged to Sk. Bakawalla, father of defendant no.1, and other co-sharers. The same had been recorded in their names in the C.S.R.O.R. There was amicable partition between Sk. Bakawalla and other co-sharers. The suit land fell to the share of Sk. Bakawalla and accordingly his possession had been reflected in the remarks column of the ROR. While the matter stood thus, one Hiralal filed a suit against Sk. Bakawalla for realization of money. The suit was decreed. In execution, the property was put to auction. The suit land was sold to Hiralal and delivery of possession was made to him. After death of Hiralal, his son, Rameswar, granted patta of the suit land to the ancestor of the plaintiff Sk. Rasuli on 25.6.1949 and delivered possession to him. Sk. Rasuli constructed a house and stayed there with his family and one widow sister, Gafuran. The defendant nos.2 and 3 are the son and daughter of Sk. Rasuli. Sk. Rasuli died in the year 1950 leaving behind his widow, Sogra Bibi, widow sister, Gafuran Bibi, and defendant nos.2 and 3. Thereafter Sogra Bibi married to Kalimuddin for the second time. Gafuran died on 4.9.71. Sk. Gaffar, defendant no.2, with the consent of defendant no.3 and Sogra Bibi, sold the suit land along with the house to the plaintiff by means of a registered sale deed dated 20.9.71 for a consideration of Rs.200/-. Possession was duly delivered to the plaintiff. Plaintiff is staying in the house. During major settlement operation, the name of Gafuran was reflected in the yadast. Her name has been reflected in holding tax receipt. The suit land was Bajyapti Madhyasatwadikari land. The land vested in the State on 13.4.61. But then his tenancy right had not been affected. The plaintiff filed an application for correction of tenancy ledger. The same was allowed on 17.8.74. But then, the defendant no.1 filed an application stating therein that rent had been fixed in his favour in R.F. Case No.1989/63-64. On the basis of the said application, the order dated 17.8.74 was recalled. Against the said order, an appeal is pending. The alternative case of the plaintiff is that he had perfected title by way of adverse possession. The defendant no.1 having no semblance of right, title and interest over the same, forcibly dispossessed the plaintiff. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

(3.) The defendant no.1 filed a written statement pleading inter alia that the suit is hit under Sec.39 of the Orissa Estates Abolition Act. According to him, Hiralal was the auction purchaser. After death of Hiralal, his wife and son sold the suit land to him by means of a registered sale deed dated 27.8.57 and delivered possession to him. He is in possession of the suit land. The M.S.R.O.R. had been published in his name. It was further pleaded that Rameswar had not granted any patta in favour of Sk. Rasuli. His watchman was staying in the house standing over the suit land. The house was collapsed in the year 1971 and since then, he is raising vegetables over the suit land. Rent had been fixed in his name. The defendant nos.2 and 3 was set exparte.