Proper description of suit property is essential for maintainability; mis-description leads to dismissal.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is a plaintiffs’ appeal against a confirming judgment. The suit of the plaintiffs praying for recovery of possession of the suit land and eviction of the defendants therefrom was dismissed by the trial Court and confirmed by the First Appellate Court.

2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court.

3. The case of the plaintiffs is that the suit land was exclusively recorded in the name of one Banchu Samal and after his death, it devolved upon them and they are in possession. On the other hand, the defendants are complete strangers to the family of the plaintiffs. As the house of the defendants was damaged due to heavy rain in the year 1995, they requested the plaintiffs to occupy a portion of the dwelling house over the suit land. The plaintiffs permitted the defendants to do so, on their promise of vacating the house after constructing their own house. However, the defendants went back on their promise despite repeated requests by the plaintiffs. They, on the other hand sent lawyer’s notice on 23.09.1996 to the plaintiffs asking them to execute a sale deed in respect of the suit house purportedly as per a contract signed by the parties on receipt of consideration of Rs.2,000/-. The plaintiffs denied in writing about any such contract of sale and on the contrary, they sent a lawyer’s notice on 12.12.1996 asking the defendants to vacate the suit property, which the defendants did not comply. Hence the suit.

4. The defendants contested the suit by filing written statement furnishing a different genealogy. They claim to be the successors of one of the sons of the common ancestor, Bidei. They also challenged the description of the suit land as non-specific. On facts, the defendants denied the plaint averments by stating that about 60 years back the sons of the common ancestor, Bidei had come to the suit village in search of work and for beating of drums to maintain their family. While they were staying in a temporary shed, the ex-landlord, Hari Mohanty, out of sympathy inducted Banchu and grandfather of plaintiff-appellants and Sanei, the grandfather of defendants as tenants over Ac.0.04 decs. and Ac.0.03 decs. out of Ac.60 decs. in Sabik Plot No. 127 under Khata No. 65 for their residential purpose with condition of beating drums before their family deity, Shri Gopal Jew Thakur during family festivals. It is further claimed that Sanei and Bhramar constructed their houses separately over said Ac.0.03 decs. land and after death of Sanei, Bhramar and other defendants are in peaceful and continuous possession having acquired occupancy rayati right. Banchu, being the eldest member of the family was requested to look after the suit land during the last settlement operation but the land was recorded in his name in the ROR of the year 1974. However, despite such wrong recording they are owners and in possession of the suit land for which the plaintiffs cannot claim their title over the same. It was also settled between the parties in presence of Gagan Bihari Mohanty that the defendant-respondents would continue to reside over the suit house as put down in writing on 01.04.1974. Further, a meeting was convened in the village and a faisalanama was executed on 10.08.1996. Alternatively, the defendants claimed to have perfected their title by adverse possession.

5. Basing on the rival pleadings, the trial court framed the following issues for determination.

1. Have the plaintiffs any cause of action to file the present suit?

2. Is the suit maintainable in the present form?

3. Is the suit barred by limitation?

4. Is the suit bad for non-joinder and mis-joinder of parties?

5. Is the description of the suit land is indistinct and not specific?

6. Are the plaintiffs have got right,