JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against an affirming judgment. The suit was for declaration of title and eviction of the defendant no.1 from the piece of land.

2. Case of the plaintiff was that Bahadur Singh was the Topa Paika Jagirdar. He enjoyed the Jagiri lands mentioned in Schedule-A of the plaint. After his death, his eldest son Meghu Singh-defendant no.2, became Topa Paika. He was in possession of the land. Jagiri system was abolished. Schedule-A land was settled by the State in favour of defendant no.2. Defendant no.2 sold the same to Lalmohan Singh-defendant no.3 by means of a registered sale deed. While the matter stood thus, defendant no.3 sold the suit land to the plaintiff in the year 1974 and delivered possession to him. It was pleaded that defendant no.1 trespassed over Schedule-B land, which is a part of Schedule-A land and constructed a house thereon. He has no semblance of right, title and interest over the same.

3. Defendant no.1 filed a written statement denying the assertions made in the plaint. It was pleaded that defendant no.1 was the absolute owner in possession of the suit land. The entire schedule-A land was Topa Paika Jagiri land of Sukulal Singh, grand-father of defendant nos.1 and 2. Sukulal died leaving behind four sons, namely, Bahadur, father of defendant no.2, Tribhuban, Shyama father of defendant no.1 and Rama. After death of Sukulal, the land was recorded in the name of the eldest son Bahadur. Thereafter, the land was recorded in the name of his son Meghu-defendant no.2. The suit land is the joint family property of the parties. His father had constructed a residential house and was residing therein whereafter he is residing in the same. The same has been reflected in the settlement R.O.R. published in the year 1929. The suit land was not partitioned. After abolition of Jagiridari, all co-sharers were entitled to get their respective shares. His alternative prayer is that he is in possession of the suit land peacefully, continuously and with hostile animus to the plaintiff and defendant nos. 2 & 3 and as such, perfected title by way of adverse possession.

4. Defendants 2 and 3 supported the case of the plaintiff. It was pleaded that the suit land was Topa Paika Jagri land. Father of defendant no.2 was the Jagirdar. The land was settled in his favour. He was the absolute owner of the land. After his death, defendant no.1 inherited the property. The nature of the land was changed and converted to Hasilata in Assessment Case No.14 of 1963-64 in the name of defendant no.2. He sold the suit land from other land to defendant no.3 by means of a registered sale deed for a valid consideration and thereafter delivered possession. He sold the land by means of a registered sale deed.

5. On the inter se pleadings of the parties, learned trial court struck ten issues. Parties led evidence, oral and documentary. Leaned trial court held that the Jagir system in the district of Mayurbhanj was abolished sometime in the year 1958 to 1959. After abolition of Jagir system, Meghu Singh got Schedule-A lands together with other Topa Paika Jagir lands. Sukhlal was the common ancestor of the parties. He had four sons. Defendant no.1 was the son of Soma Singh. Placing reliance on the judgment in the case of Rajkumar Palia v. Sadhuram Palia and others (1980) 2 ILR Cuttack 202 it held that defendant no.1 and co-sharer had interest over Schedule-A land after Jagir system was abolished. Meghu Singh had limited interest in Schedule-A land. Therefore, the sale of Schedule-A land by Meghu Singh beyond his share is void. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Baripada in Title Appeal No.1 of 1989, which was eventually dismissed.

6. The second appeal was admitted on the following substantial question of law :

“Whether the settlement of the suit lands in favour of defendant no.2 Meghu Singh after abolition of Topa Paika system was n