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2017 DIGILAW 1188 (ORI)

Bhagaban Urma (since dead) through L. Rs v. Kastu Charan Patel

2017-10-23

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This is a defendants’ appeal against reversing judgment. 2. The mother of the respondent as plaintiff instituted T.S No.8/22 of 1982-83 in the court of the learned Subordinate Judge, Kuchinda for declaration of right, title and interest, confirmation of possession and in the alternative for recovery of possession, if she is found dispossessed from the suit land and permanent injunction. The case of the plaintiff is that she applied to the Tahasildar, Kuchinda to lease out some land in her favour. The Tahasildar, Kuchinda in Lease Case No.57 of 1975 settled Ac.1.46 dec. appertaining to Plot No.124/1 in Mouza-Khandakata. ROR was issued in her favour. She was in possession of the suit land since 1973. Since defendants created disturbance in her peaceful possession, she filed the suit seeking the reliefs mentioned supra. 3. Defendants filed a written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiff had never applied for lease of the suit land, nor Tahasildar, Kuchinda granted the same in her favour. The suit lands are all along in their possession for more than the statutory period. The father of defendant no.2 reclaimed the suit land and made it fit for cultivation. The suit land is allotted in favour of defendant no.1 after his marriage. He is in possession over the same. It was further pleaded that in Assessment Case No.33 of 1981, the Tahasildar, Kuchinda passed the assessment in favour of defendant no.1 subject to payment of annual rent. Accordingly, defendants paid rent. The plaintiff was not in possession of the suit land. Thus the question of trespassing over the suit land did not arise. The plaintiff had forged the map through R.I and inserted her name in Lease Case No.57 of 1975 and falsely claimed right, title and interest over the suit land. It is apt to state here that during pendency of the appeal, the sole plaintiff as well as defendant no.2 died, where after their legal heirs have been substituted. 4. On the inter se pleadings of the parties, learned trial court has framed five issues. Both the parties led evidence, oral and documentary, in support of their cases. The suit was dismissed. The plaintiff filed appeal before the learned District Judge, Sambalpur, which was transferred to the learned Addl. District Judge, Sambalpur and renumbered as T.A No.25/18 of 1985/86. 4. On the inter se pleadings of the parties, learned trial court has framed five issues. Both the parties led evidence, oral and documentary, in support of their cases. The suit was dismissed. The plaintiff filed appeal before the learned District Judge, Sambalpur, which was transferred to the learned Addl. District Judge, Sambalpur and renumbered as T.A No.25/18 of 1985/86. The same was allowed. 5. The second appeal was admitted on the following substantial question of law. “Whether the suit for recovery of possession is barred by limitation under Article 65 of the Limitation Act read with Sec. 27 thereof? 6. Heard Mr. L.K. Maharana on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants. None appeared for the respondents. 7. Mr. Maharana, learned counsel for the appellants, submitted that the father of defendant no.2 reclaimed the suit land, cleared up the forest and converted the same to agricultural land. Pursuant to forest land reclamation case of the year 1947-48, defendants are in possession of the same. The suit land had been allotted in favour of defendant no.1 after his marriage. Defendant no.1 made some improvements of the land and maintained his family out of the agricultural produce. In Assessment Case No.33 of 1981, an inquiry was made by the Tahasildar, Kuchinda. The latter passed the order of assessment in favour of defendant no.1 subject to payment of annual rent from 1948-49 and 1979-80. Accordingly, defendant paid Rs.356.20 ps. on 2.7.1981. He further contended that the plaintiff forged the map through R.I and inserted her name in Lease Case No.57 of 1975. 8. The submission of the learned counsel for the appellants is difficult to fathom. In Lease Case No.57 of 1975, the land was leased out in favour of the plaintiff. Accordingly, ROR was issued in her favour on 9.1.1978. The order dated 23.6.1981 passed by the Tahasildar, Kuchinda in Assessment Case No.33 of 1981 reveals that Plot No.124/28 was settled in favour of defendant no.1 subject to payment of annual rent. But then, the suit schedule plot is 124/1. The same is different. Otherwise also the suit schedule land could not have been leased out/allotted in favour of any person. The lease granted in favour of the plaintiff still subsists. Thus the plaintiff is the paramount owner of the suit land. There is no perversity or illegality in the findings of the learned lower appellate court. The same is different. Otherwise also the suit schedule land could not have been leased out/allotted in favour of any person. The lease granted in favour of the plaintiff still subsists. Thus the plaintiff is the paramount owner of the suit land. There is no perversity or illegality in the findings of the learned lower appellate court. The substantial question of law is answered accordingly. 9. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.