JUDGMENT

This appeal is directed against the judgment and decree passed by the learned District Judge, Balasore in S.J.Appeal No. 25 of 1994-I. The appellant therein was the unsuccessful plaintiff in the trial Court as his suit for declaration of title, recovery of possession and injunction had been dismissed. On an appeal being filed under Section 96 of the Code of Civil Procedure, the same having been allowed, the suit has been decreed granting all the reliefs to the plaintiff-appellant.

So the defendants being aggrieved by the judgment and decree passed by the lower appellate Court have filed this appeal under Section 100 of the Code of Civil Procedure.

2.The parties hereinafter have been described as per their position as assigned in the trial Court in order to avoid confusion, bring in clarity and also for the sake of convenience.

3.Plaintiff’s case is that Bhagabat, Kailash and Gagan Behari, the three sons of Sundar Mohan had purchased the suit land and as such being the lawful purchasers were in possession. They had constructed six pucca rooms in a row over there. Sometime thereafter when dissention arose in the family, Bhagabat and his daughter’s son filed a suit i.e. T.S. no. 29 of 1970 for partition of said property including the suit properties. The suit ultimately ended in compromise and final decree in terms of compromise was passed therein on 16.12.1974. In accordance with the final decree passed on compromise, the suit plot got divided into three equal shares Bhagabat got southern two rooms and verandah, Kailash with his son Purna accetpted the middle tow rooms with verandah and Gagan got northern two rooms and verandah. Accordingly, they separately possessed and occupied the rooms with verandah. While such state was continuing, Gagan and his son Arjun sold one room to Mahendra Maharana on 8.12.1972 and they subsequently on 6.3.1973 sold the other room over Ac. 0.01 dec. to one Janardan Maharana by registered sale deed followed by delivery of possession.

Thereafter, Kailash sold two rooms over land of Ac. 0.02 1/3 dec. to Janardan on 10.4.1973 by registered sale deed accompanied by delivery of possession where his son Purna stood as a signatory in token of his consent. In this way, Janardan possessed land of A 0.3 1/3 dec. with three rooms. Defendant no. 4 was a tenant under him in respect of one room and as such in occupation of the same on payment of Rs. 30/- as rent per month. On 8.7.1983 Janardan sold land described in schedule ‘Ka’ of the plaint with the house to the plaintiff by registered sale deed followed by delivery of possession in directing defendant no. 4 to pay rent to him. In the year 1971, Bhagabat died leaving behind his widow Haramani, defendant no. 3 (ka) and daughter Laxmi, the defendant no. 2. They were in possession of the southernmost two rooms. It is alleged that on 1.2.1984, the defendant nos. 1 and 2 forcibly entered into two rooms purchased and possessed by the plaintiff by breaking open the lock and they straightway denied the right of the plaintiff. So the plaintiff filed the suit with aforesaid reliefs.

4.The defendant nos. 1 to 3 and 3 (ka) in their written statement asserted that no final decree being drawn up over the stamp paper as required under law in that Title Suit No. 29 of 1970, the parties had never been conferred or clothed with title in respect of the properties allotted to them as so recorded in the final decree which was passed as per the order based on compromise. So according to them, the parties had no alienable interest and as such the plaintiff is said to have derived no title on the basis of his purchase and it is further said that there was no delivery of the said property to the plaintiff. According to them, there was thus no partition by metes and bounds and the plaintiff was not in possession of the suit property as asserted by him. They also alternatively placed a case of acquisition of title by adverse possession being in open, peaceful and continuous pos