The plaintiff's failure to prove separate possession and the non-identifiability of the suit land led to the dismissal of the suit.

JUDGMENT :

A.K. Rath, J.

This appeal is directed against the judgment and decree dated 9.12.1987 and 18.12.1987 respectively passed by the learned District Judge, Cuttack in Title Appeal No.8 of 1987 partly allowing the judgment and decree dated 26.7.1986 and 5.8.1986 respectively passed by the learned Addl. Sub-Judge, Cuttack in Title Suit No.96 of 1974.

2. Plaintiff-appellant instituted the suit for declaration of possessory title over the suit land, for a declaration that the defendants have no of manner of right, title and interest over the same and permanent injunction. Case of the plaintiff was that the suit land was Anabadi land. The same belonged to the ex-intermediary. After abolition of estate, defendant no.1 claimed to be a tenant by virtue of lease purportedly granted by the landlord. A proceeding under Sec.5(1) of the Orissa Estates Abolition Act (in short, ‘the OEA Act’) was initiated. The Board of Revenue rejected the claim of defendant no.1 and set aside the lease. Pursuant to the order of cancellation, the Tahasildar took over possession of the land in the year 1957. Prior to abolition of estate, the plaintiff was in possession of the suit land. He constructed a thatched house over the suit land and resided thereon. In the year 1959, his house was destroyed in the cyclone. Thereafter, he took the house of defendant no.1 on rent situated adjacent to the south of the suit land. He entered into an agreement with defendant no.1. He used to pay rent. During continuance of tenancy, he constructed a house over the suit land. On 20.5.1961, he vacated the house of defendant no.1 and shifted to his newly constructed house. It was further pleaded that holding number of the rented house was 598/C (old) and 875 (new) of ward no.1 of Cuttack Municipality, whereas holding number of his house was 887 (old) and 875-A (new). The two houses are separate. It was further pleaded that defendant no.1 instituted Money Suit No.2 of 1967 against him for realisation of arrear rent in respect of holding no.598/C (old) and 875 (new). The suit was decreed. Thereafter, HRC Case No.90 of 1968 was initiated against him in respect of the same house. He lost the case. The appeal met with the same fate. There was a confusion that the constructed house over the suit land is the same as that of his rented house of defendant no.1. However, these two cases were started at the instance of local agents of defendant no.1. Encroachment cases were initiated against the plaintiff. It was converted to lease case. After retirement, defendant no.1 went to Calcutta and thereafter to East Pakistan, where he died. His agents tried to execute the order of HRC Case No.90 of 1968 for eviction of the plaintiff from the suit house, though the suit house and the house involved in HRC case are two different and distinct.

3. Defendants 2 to 5 filed a written statement denying the assertions made in the plaint. Case of the defendants was that defendant no.1 had taken lease a portion of Survey Plot Nos.814 and 811 from the ex-intermediary. The lease had not been cancelled by the Revenue Authorities under Sec.5(1) of the OEA Act. The plaintiff had not vacated the house, which had been assigned with Holding No.598/C by the Cuttack Municipality. The plaintiff had manipulated municipal records and filed the suit in order to deprive them of their right to evict him from their house. The plaintiff had no house over survey plot nos.814 and 811.

4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court came to hold that the plaintiff was originally a tenant in respect of the house of defendant no.1 situated on a portion of suit plot nos.811 and 814. Money suit was initiated against the plaintiff for realisation of arrear rent. The same was decreed. HRC Case was started against the plaintiff. Order of eviction was passed. Execution case is sub judice. Plaintiff had not furnished the boundary or sketch map to prove t