The main legal point established is that the burden of proof lies with the Plaintiff to establish their right, title, and interest over the land, and the decision is based on the evidence and documents presented.

JUDGMENT :

The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’), has assailed judgment and decree dated 21.05.2008 and 01.07.2008 respectively passed by the learned District Judge, Keonjhar in R.F.A. No.32 of 2007.

By the same, the Appeal filed by the Respondent No.1 (Plaintiff) under section 96 of the Code has been allowed and her title over the suit land has been declared and possession thereof has been confirmed. These Appellants (Defendants 1 and 2) thus have been directed to deliver the possession of the suit land the Plaintiff by removing the barbed wire fencing therefrom.

The Respondent No.1, as the Plaintiff, had filed Title Suit No.65 of 1997 in the Court of learned Civil Judge, Senior Division, Keonjhar seeking declaration of her right, title, interest and possession over the suit land and in the alternative, recovery of possession from these Appellants (Defendants 1 and 2)

The suit having been dismissed by the Trial Court, the unsuccessful Plaintiff had carried the Appeal where she has been granted with the relief, as prayed for.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. The Plaintiff’s case is that the suit land is a portion of the land under plot no.1577 as specifically shown in the rough sketch map in Schedule-A of the plaint. She claims to have purchased the same by registered sale deed dated 28.03.1991 from the Defendant No.3, the original owner. The area of land purchased by the Plaintiff is Ac.0.05 decimals and it has been mutated in her name being assigned with Plot No.1577/1782. The suit land is said to have been kept as a passage to the residential portion of the house. Some plants have been grown along the boundary line and the Defendants 1 and 2 purchased a portion from the original Plot No.1577 from that very Defendant No.3. The Plaintiff, some time in the month of June, 1997, went ahead in putting up a pucca boundary wall after the boundary was identified by the local Revenue Inspector on 20.09.1997. She, then stored some materials when the Defendants 1 and 2, putting pillars fenced it by barbed wire and thereby encroached upon the suit land. This has led the Plaintiff to file the suit.

4. The Defendants 1 and 2, coming to contest the suit, stated that they having purchased their land, had planted trees over their area and no space had ever been left by the Plaintiff on the western side as there was a road adjoining the eastern and southern side of the land purchased by the Plaintiff. It is their case that Defendant No.1 had purchased Ac.0.10 decimals from that large plot no.1577 having an area of Ac.0.08 decimals. They having purchased on 21.06.1984, took over possession and it too has been mutated in the name of Defendant No.1 under Plot No.1577/1785 appertaining to Khata no.443/67. It is stated that the Plaintiff although has purchased Ac.0.7 and 1/2 decimals of land belonging to Defendant No.3 in fact such extent of land was not so available in the field.

5. Faced with the rival pleadings, the Trial Court framing six issues, has concluded that the Plaintiff has failed to prove the right, title and interest over the suit land as claimed by them. Having said that, it has held that the materials on record do not establish that the Defendants have encroached the land of the Plaintiff. So, the suit has come to be dismissed.

The Plaintiff, being aggrieved by the dismissal of her suit, carried the Appeal, which has been allowed.

6. The present Appeal has been admitted on 13.07.2004 for answering the following substantial question of law:-

“(a) Whether in view of the rejection of the report of the Civil Court Commissioner by the trial Court, the courts below ought to have deputed another Civil Court Commissioner to clarify further points in the matter of identification of the suit land by going for measurement in the field with refe