Decided on August 02,1978

Budhi Mahal And Ors. Appellant
Gangadhar Das And Ors. Respondents


S.K. Ray, J. - (1.) THIS is a Plaintiffs' second appeal from the reversing decision dated 7 -3 -1974 of the Subordinate Judge, Bhadrak. passed in Title Appeal No. 30 of 1968, in a suit for declaration of title and confirmation of possession or in the alternative for recovery of possession in respect of Ka schedule land, for recovery of Rs. 100/ - from the Defendants as per Kha schedule and for permanent injunction against the Defendants. The suit land enumerated in Ka schedule comprises of 42 decimals appertaining to plot No. 952 under Khata no 447 in mouza Gudpal in touzi No. 123
(2.) THE Plaintiffs' case may be briefly stated: One Nidhi Padhi and his cosharers were recorded landlords in respect of touzi No. 123. The suit land was in possession of one Dina Das, father of Defendants 1 and 2, as the lease of the landlords. In the settlement record -of -rights finally published in 1928 Dina Das was wrongly recorded as a raiyat having Sthitiban Dhalibhag right. Nidhi Padhi and his cosharers, therefore, wanted to oust him from the land. Ultimately, Dina Das surrendered the land to the landlords. The touzi was sold for arrears of land revenue on 29 -4 -1937 and was purchased by one Sk. Barkatulla (P.W. 1) who got delivery of possession. on 19 -3 -1938 (Ext. 7). The said auction purchaser leased out the suit land to Defendant No. 3 on 15.4.1940 by an unregistered' lease deed (Ext. 1) and put him in possession thereof. Defendant No. 3 paid rent regularly to his, landlord, the said Barkatulla. The estate (touzi No. 123) was abolished in the year 1953. Defendant No. 3 possessed the land through his bhag tenants and was paying rent to the Anchal after the abolition of the estate - in 1953. Ultimately, he sold the suit land to the Plaintiffs, 26 in number, on 11.3.1964 (Ext. 4). In the Hal Settlement operation following this conveyance the Plaintiffs were themselves recorded in the Parcha as marfatdars. They also paid rent to the Anchal as per Ext. 3 series for the sale 1370 -71 to 1372 -73. All these receipts were granted on dares between 20.3.1964 and 20.3.1966. Subsequent to the purchase by the Plaintiffs there was a dispute between them and Defendants 1 and 2 who claimed title and possession as successors in -interest of their father Dina Das. It led to the initiation of a proceeding under Section 145 , Code of Criminal Procedure which was numbered as Mise Case No 69 of 1964 in the Court of the Sub -Divisional Officer, Bhadrak. This proceeding ended in declaration of possession in favour of Defendants 1 and 2 which led to the filing of the present suit for the aforesaid reliefs.
(3.) The Defendants 1 and 2 claimed title to and possession over the suit land as occupancy tenants. They denied that their father ever surrendered the suit land to the landlord Nidhi Padhi and his cosharers. They also denied that Sk. Barkatulla was the auction purchaser of the touzi in question in a revenue sale. They, however, alleged that even though this auction sale is held to be genuine they were in continuous possession of the suit land as tenants notwithstanding such revenue sale. They asserted that the unregistered lease deed granted by Sk. Barkatulla in favour of Defendant No. 3 was a manufactured document for the purpose of this civil suit. In fact, Defendant No. 3 as agent of Sk. Barkatulla collected rent from them in respect of the suit land by granting receipts. Lastly they averred that the suit was barred by limitation as the Plaintiffs and their predecessors -in -interest were out of possession for more than 12 years prior to the institution of the suit.;

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