Settlement record of right does not create or extinguish title; plaintiff's case should stand on its own merits.

JUDGMENT :

A.K. Rath, J.

Defendants are the appellants against a confirming judgment.

2. Panchu Majhi, predecessor-in-interest of respondent nos.1 and 2, as plaintiff instituted the suit for recovery of possession and mesne profit. The case of the plaintiff was that the suit land was the self-acquired property of his father, Raghu Majhi. They were in possession of the suit land. One Lambu Majhi, a distant relative, was staying with him. He had no title over the suit land. But then, the suit land was jointly recorded in the final ROR. Lambu died issueless. Defendant no.1 was brought by his father to help him in cultivation. He had no right over the suit land. While the matter stood thus, his father died in the year 1972. Taking advantage of his innocence, the defendant nos.2 to 4, sons of defendant no.1, created disturbances. They filed Mutation Case No.1018/79 before the Tahasildar, Kodinga to mutate the land in their favour. No enquiry was made. Without considering the matter in its proper perspective, the Tahasildar allowed the case on 8.12.79. Pursuant to the order passed by the Tahasildar, Kodinga, khata no.89 had been mutated in favour of defendant no.1 as khata no.108/120. The order passed by the Tahasildar is illegal. It was further pleaded that the defendants were in wrongful occupation of the suit land and appropriating the crops for last two years. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

3. The defendants filed written statement denying the assertions made in the plaint. They furnished the following genealogy.

		Mangan Manjhi
Gopi				Ghasi @ Kola
Lambu (died issueless)		Raghu	Pitambar (D-1)	Aetu
	Panchu (Plaintiff)		Puran
	Dolopathi (D-2)	Horibandhu (D-3)	Gosu(D-4)

According to the defendants, the suit land was the self-acquired property of Gopi, father of Lambu. Gopi and Ghasi are two brothers being sons of Mangan. They were living in separate mess. Lambu was bed ridden during settlement operation. He requested Raghu, father of the plaintiff, to attend the settlement camp. Raghu played fraud and managed to get his name included in the ROR. It was further pleaded that the suit property was not the self-acquired property of Raghu. Raghu was not in possession of the suit land. As Lambu had no son, he was being looked after by defendant no.1. Defendant no.1 with his family stayed in the house of Lambu. Lambu had given 4 khiaris of land to the plaintiff, viz., plot nos.166, 169 and 170 and a portion of plot no.59. Plaintiff sold the same to different persons. Lambu had allotted plot nos.169 and 170 of khata no.89 to defendant nos.2 and 3. The remaining lands were allotted to defendant no.1. Defendant no.1 and his sons are in peaceful possession of the suit land openly, peacefully and with the knowledge of the plaintiff and as such perfected title by way of adverse possession.

4. Stemming on the pleadings of the parties, learned trial court struck seven issues. To substantiate the case, plaintiff had examined three witnesses and on his behalf one document had been exhibited. Three documents had been exhibited by the defendants. Learned trial court came to hold that plaintiff had title over the suit property. Defendants had failed to substantiate the plea of adverse possession. Held so, it decreed the suit. The defendants filed T.A. No.36 of 1986 before the learned District Judge, Koraput, Jeypore, which was eventually dismissed. It is apt to refer that during pendency of the suit, the plaintiff died. The legal heirs had been substituted. During pendency of the second appeal, appellant no.1-defendant no.1, died. The legal heirs had been substituted.

5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2, 4, 5, 6 and 8 of the memorandum of appeal. The same are:

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