The court highlighted the need for sufficient evidence to prove ownership, the remedy of a suit for declaration and possession in case of clouded title, and the discretion of the court in allowing withdrawal of a suit under Order XXIII Rule 1 (3) CPC.

JUDGMENT :

DR. A.K.RATH, J.

1. This is a plaintiff’s appeal against the judgment and decree dated 18.4.1988 & 25.4.1988 respectively passed by the learned Subordinate Judge, Gunupur in T.A.No.4 of 1986 confirming the judgment and decree dated 25.10.1984 and 2.11.1984 respectively passed by learned Munsif, Gunupur in Title Suit No.1 of 1981.

2. The case of the plaintiff is that the suit land, which is locally known as Banki Polam Istuawas, originally belonged to Jeypore Estate. The ex-ruler of Jeypore gifted the said property in favour of one Bankoi Das. In due course of time, Gopinath Pujari and Balaram Pujari became the owner of the land by means of partition. The same was assessed to total land revenue of Rs.8/-with cess. Gopinath got the land bearing cist of Rs.3-8-0 and Balaram got the land bearing cist of Rs.4-8-0. On 25.3.1929 the legal heirs and successors of Balaram sold the land bearing cist of Rs.4-8-0 to Sammatla Jaggaraidu for a consideration of Rs.4,000/-. Thereafter on 3.3.1930, Gopinath and his sons sold their share bearing cist of Rs.3-8-0 to the said Sammatla Jaggaraidu. Thus Sammatla Jaggaraidu became the absolute owner of the entire land. Since the Registration Act was not in force, the sale deed was executed on stamp papers and attested as per law. While the matter stood thus, Sammatla Jaggraidu sold the entire land with the cist of Rs.8/-to Dinabandhu Sahu by means of a registered sale deed no.122 of 1942 and thereafter delivered possession. Thereafter Dinabandhu Sahu sold the said land to Neelamani Panigrahi, the father of the plaintiff, by means of a registered sale deed no.127 of 1948. Since then the father of the plaintiff was in peaceful possession of the suit land. Thereafter the plaintiff is in possession. The father of the plaintiff used to pay cist to the ex-Estate of Jeypore and thereafter to the State Government till the year 1965. The R.O.R. was published in the year 1964. Since he was a minor, he could not take any steps during settlement operation. The R.O.R. was issued in favour of his father in respect of khata no.5 for an area of Ac.66-66 cents. Though his father was the owner of an area Ac.105.90 cents, but an area Ac.35.82 cents was wrongly recorded in the name of State Government in respect of khata no.6 of plot no.51. While the matter stood thus, in the year 1964, the Tahasildar, Gunupur, defendant no.2 initiated encroachment case against him. The Tahasil Amin had submitted the report in his favour. In spite of the same, the order of eviction was passed on 18.6.1979. Thereafter he filed appeal before the S.D.O., Gunupur against the said order. Before delivery of the order, the suit records were washed away in the flood of 17.9.1980. To accommodate the flood victims, the defendants along with the Chairman, N.A.C., Gunupur made attempt to demarcate the disputed plot to grant lease. The same was stopped due to protest. Again in the last week of December 1980 and 1st week of January 1981, the defendants attempted to assign a part of the disputed plot to the R.E.O. and some flood victims. Though he protested but the defendants maintained a stony like silence. Since the defendants threatened to invade the right, title and interest and enjoyment to the property, he instituted the suit for permanent injunction.

3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The defendants denied the alleged gift deed and successive alienations. According to the defendants, father of the plaintiff was a Manager of Jeypore Estate. The land, which was in possession of the plaintiff, had been duly recorded in the name of his father in the last settlement. The plaintiff is the adjacent owner of plot no.51. Purimamidi alias Katwalaguda was an intermediary estate. The intermediary interest of Jeypore Estate vested in the State of Orissa. The land, which was in khas possession of the intermediary, was settled unde