A suit for recovery of possession is non-maintainable if it does not include all necessary parties and fails to specify the property accurately.

JUDGMENT :

Ananda Chandra Behera, J.

1. This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellants in this 2nd Appeal are the LRs of the defendant No.1 in the suit vide T.S. No.62 of 1991 before the Trial Court and the appellants before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC.

The respondent No.1 in this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.62 of 1991 and respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC.

The respondent No.2 in this 2nd Appeal was the defendant No.2 before the Trial Court in the suit vide T.S. No.62 of 1991 and respondent No.2 before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC.

3. The suit of the plaintiff (respondent No.1 in this 2nd Appeal, Sibaram Sethi) against the defendant No.1 was a suit for recovery of possession in the form of mandatory injunction in respect of the suit properties described in the Schedule of the plaint i.e. Ac.0.05 dec. out of Ac.0.10 dec. of plot No.247 under Khata No.646 in Mouza-Dura under Berhampur Tahasil.

The genealogy described in Paragraph No.2 of the plaint is the family pedigree of the plaintiff and defendant No.2.

As per the genealogy given in the plaint of the plaintiff, Hadu Sethi was their common ancestor. The said Hadu Sethi had two wives.

Arjun Sethi, Laxman Sethi and Gop Sethi are the 3 sons of the first wife of Hadu Sethi.

Narasinga Sethi and Govinda Sethi are the two sons of the second wife of Hadu Sethi.

Plot No.247, Ac.0.10 dec. under Khata No.646 in Mouza-Dura originally belonged to Hadu Sethi. After the death of Hadu Sethi, the suit properties were divided between the so ns and grandsons of Hadu Sethi. Accordingly, they were/are enjoying the same separately. The plaintiff and defendant No.2 purchased the share of Gobinda Sethi son of Hadu Sethi through R.S.D. No.3601 in the year 1979. The said purchased property of the plaintiff and defendant No.2 is situated adjoining the southern side of the defendants share. As such, the plaintiff and defendant No.2 possessed and enjoyed the purchased share of Gobinda Sethi described in the rough sketch map of the plaint with specific indication thereof as A,B,C & D as the owners of the same, which are the suit properties in the suit.

The defendant No.1 has no right, title and interest over the suit properties of the plaintiff and defendant No.2. He (plaintiff) was working as a peon under Purushottampur Tahasil. He (plaintiff) stocked materials such as stones, bricks and sands etc for construction of a house on the suit properties. On dated 30.04.1991, he (plaintiff) found that, the defendant No.1 is making construction encroaching the suit properties using the materials gathered by the plaintiff. When the plaintiff objected to the same, the defendant No.1 did not respond and the defendant No.1 also gathered materials such as, stones, bricks and sands for proceeding with the construction works further. Therefore, the plaintiff approached the Civil Court by filing a suit vide T.S.No.62 of 1991 against the defendants praying for a declaration that, he (plaintiff) and Jagannath Sethi (defendant No.2) are the owners of the suit properties and to issue mandatory injunction against the defendant No.1 directing him to demolish the constructions raised by him (defendant No.1) on the suit properties and to deliver vacant possession of the same to the plaintiff, failing which, permission be given to the plaintiff to demolish the said constructions raised by defendant No.1 and to realize the costs thereof through the process of Court from the defendant No.1 along with other reliefs, if any, to which, the plaintiff is entitled for.

4. Having been noticed from the Trial Court in the suit vide T.S. No.62 of 1991, the defendant No.1 contested the suit of the plaintiff by filing his written statement denying the allegations alleged by the plaintiff in his plaint stating that,