Decided on July 25,1978



R.N.Misra, J. - (1.) Plaintiff has appealed against the affirming judgment and decree of the learned Additional Subordinate Judge of Jeypore upholding dismissal of his suit for declaration of title and injunction restraining the defendant from disturbing his possession.
(2.) Plaintiff alleged that he had purchased 86 decimals of land out of plot No. 57 in Mauza Kaki under a registered sale deed dated 28-11-1970 (Ext. 2) for a consideration of Rs. 2,580/- after obtaining the requisite permission from the competent authority under the provisions of the Orissa Land Reforms Act from one Dalapati Hantal. Dalapati had purchased the property from Hadi Hantal and Laxman Hantal in Feb., 1969. Plaintiff has remained in possession of the property following his acquisition and had constructed an asbestos-roofed house thereon. On 14-4-1972, the Additional Tahsildar of Sunabeda initiated a proceeding under the Orissa Prevention of Land Encroachment Act, 1972, on the allegation that the land in question had already been acquired under the Land Acquisition Act (I of 1894) by the State Government of Orissa and notwithstanding the objection of the plaintiff, directed his eviction on the footing that plaintiff was an encroacher. Plaintiff tried to obtain relief under the Statute, but since his appeal and revision were dismissed, he was obliged to institute the suit. According to him, the land is not "Government property" within the definition of the Encroachment Act and as such the proceeding was not maintainable. It may be stated that the proceeding was in respect of 8 decimals out of the 86 decimals purchased by the plaintiff.
(3.) In its written statement, the defendant pleaded that the land belonged to one Raghunath Hantal and he died leaving behind his daughter Padma. The 92 decimals of land belonging to Raghunath Hantal including the disputed property was notified for acquisition. A dispute arose as to who was the proper person to be compensated and the matter was referred to the Court of the Subordinate Judge, Jeypore, in M.J.C. No. 109 of 1964 under Section 30 of the Land Acquisition Act. The learned Subordinate Judge held that the land was the separate property of Raghunath Hantal and Hadi Hantal had no title over it. Plaintiff's vendor had never acquired any title to the property and plaintiff, therefore, is not entitled to declaration of his title. The construction of the house by the plaintiff is an encroachment after the acquisition and plaintiff is not entitled to protection. The land encroachment proceeding had been rightly initiated as the disputed property was Government land and plaintiff was an encroacher,;

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