JUDGMENT :

Dr. A.K. Rath, J.

This is a plaintiff’s appeal against confirming judgment in a suit for declaration of right, title and interest, confirmation of possession, recovery of possession, in case the plaintiff is dispossessed during pendency of the suit and permanent injunction.

2. The dispute pertains to an area of Ac.0.25 dec. agricultural land appertaining to Sabik Khata No.3, Sabik Plot No.417/1, which corresponds to Hal Khata No.49, Hal Plot No.313 and homestead appertains to Sabik Plot No.666/732 which corresponds to Hal Plot No.38, Ac.0.18 dec. and Hal Plot No.38/1218 Ac.0.18 dec. appertaining to Hal Khata No.166 of Mouza-Sankarpur. Case of the plaintiff is that his father Ananda Naik got the suit land in Nayabadi Case No.246 of 1926-27 and 237 of 1929-30. His father was in possession of the same. After his death, the plaintiff is in possession of the suit land. He used to pay rent. Taking advantage of his absence, defendant no.4 and defendant no.5 constructed a house over plot no.732 over an area of Ac.0.02 dec. After demarcation they tried to occupy the remaining portion of the land covered under the said plot. It is further stated that defendants forcibly possessed the land covered under Plot No.417/1. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

3. Defendant nos.1 to 3 filed a written statement denying the assertions made in the plaint. According to them, their grandfather Laxman Mohanta got the agricultural land under Sabik Plot No.417. Laxman Mohanta was in possession of the same. After his death, his son and grand sons are in possession of the same. In the Hal ROR, the names of defendant nos.1 to 3 have been recorded. The above plot corresponds to Hal Plot No.313, Hal Khata No.49 area Ac.0.25 dec. They are paying rent. The plaintiff is an Amin in Tahasil Office. He tried to grab the land covered under the above plot. The plaintiff filed Mutation Case No.636 of 1984 before the Tahasildar, Keonjhar to mutate his name in respect of the suit plot no.313, but the same was rejected. The Hal ROR has been issued in their favour and others. Some of the co-sharers having not been impleaded, the suit is not maintainable.

4. Defendants 4 and 5 have also filed a written statement pleading, inter alia, that they are in possession of Plot No.38/1218 appertaining to Khata No.166 for the last 40 years. The land has been recorded in their name in Hal ROR. Since they are in possession of the suit land continuously, uninterruptedly and to the knowledge of the true owner, they have perfected title by way of adverse possession.

5. On the inter se pleadings of the parties, learned trial court has framed ten issues. The parties led evidence, both oral and documentary. The suit was dismissed. Plaintiff challenged the judgment and decree before the learned District Judge, Keonjhar, which was transferred to the court of the learned Civil Judge (Senior Division), Keonjhar and renumbered as Title Appeal No.7/33/92/93. Learned appellate court came to hold that without identification it cannot be stated that Sabik Plot No.417 corresponds to Hal Plot No.313. Held so, it remitted the matter back to the learned trial court to render a finding that (1) what is the corresponding Hal Plot of Sabik Plot No.417/1 (ii) total area of Sabik Plot No.417, (iii) whether any portion of Sabik Plot No.417 or 417/1 has been merged in the river and the extent thereof. After remand, learned trial court deputed an Amin Commissioner. The Commissioner submitted the report. The same was not accepted. Another commissioner was deputed. The commissioner submitted the report stating that it was not possible on his part to measure the land with certified copy of the map. Thereafter, learned trial court transmitted the record to the appellate court. The learned appellate court came to hold that the plaintiff has failed to prove title over the suit land. The defendants have perfected title over the suit land by way of adverse posse