CHRISTOPHER BARLA Vs. BASUDEV NAIK

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Orissa at Cuttack dated October 22, 1992, in Second Appeal No.188 of 1981. The plaintiff is the appellant whose suit was decreed by the Subordinate Judge in Title Suit No.2 of 1977 by judgment and decree of 27th September, 1979. The District Judge, Sundargarh, however, in Title Appeal No. 23/79 dated 10th April, 1981 reversed the decision of the trial court and dismissed the suit. The Second Appeal preferred by the plaintiff has been dismissed. This appeal has been preferred by special leave.

(2.) The case of the appellant is that one Sanatan Kalo of Mouza Sundargarh had three sons namely, Kunu, Benudhar and Somnath. Sanatan Kalo as well as his sons are all dead. Kunu had three sons namely, Ratnakar, Raghunath and Pitambar, while Benudhar also had three sons namely, Sadasiv, Dhaneswar and Binod. The third son namely, Somnath had two sons namely, Kanhei and Purna. In the Mukherjee Settlement which took place prior to 1972 the plot in question was recorded in Khata No.12 of Mouza Sundargarh in the names of Kunu and Benudhar, sons of Sanatan Kalo and Kanhei and Purna, sons of the third son of Sanatan Kalo namely, Somnath. The land measured 33 decimals in plot No. 824. This corresponds to Hal Plot No.61 measuring as 0.270 decimals in Khata No.371 of the Hal Settlement, which we are told took place after 1972. In the aforesaid settlement, the land in question was recorded jointly in the names of the sons of Kunu, Benudhar and Somnath.

(3.) The case of the plaintiff is that he purchased the lands from Sadasiv, Dhaneswar and Binod, sons of Benudhar by registered sale deed dated 12th January, 1972. It may here be noticed that Sanatan Kalo was the member of a scheduled tribe and the appellant was also a member of a scheduled tribe. According to the appellant, after the execution of the sale deed he came in possession of the suit plot and the same was fenced by him and he continued in enjoyment of the said plot. However, in the year 1976 the defendant claims to have purchased the land from Raghunath, one of the sons of Kunu under a registered sale deed dated 4th February, 1976. It is not disputed that the defendant is not a tribal and he obtained the property in question from a tribal with the prior permission of the competent authority under the relevant Regulation namely, Orissa Regulation No.2 of 1956. After obtaining the sale deed the defendant respondent is alleged to have forcibly evicted the appellant from the plot in question. This led the appellant to file a suit for recovery of possession on the basis of his title.