Possessory rights can be protected until evicted by the true owner, and earlier unexecuted decrees do not operate as res judicata.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is a defendant’s appeal against a reversing judgment. The defendant assails the judgment dated 06.10.2018 followed by decree passed by learned District Judge, Kalahandi, Bhawanipatna in RFA No. 17 of 2015, whereby the judgment dated 30.10.2015 followed by decree passed by learned Civil Judge (Jr. Division), Bhawanipatna was set aside and the suit filed by the plaintiff was decreed.

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

3. The suit was filed by the plaintiff-respondent for injunction and for declaration that the defendant has no right, title, interest and possession over the suit land and that the decree passed by the Civil Judge (Sr. Division), Bhawanipatna in T.S. No.4 of 1973 is null and void and not binding upon him.

4. The facts of the case are that the suit land originally belonged to the ex-ruler of Kalahandi and came to be recorded in the name of the State in the year 1964- 65. Prior to such settlement, a deed of assignment was executed in the name of the Municipality by the son of the ex-ruler, P.K. Deo empowering it to look after the management of the house standing thereon being used by Wheeler club. Said deed of assignment was executed on 22.11.1962. The father of the plaintiff stayed in the suit house from 1951 and continued to possess it till his death. After his death, the plaintiff possessed the suit house. The defendant Municipality instituted a suit to evict the father of the plaintiff being T.S. No. 4 of 1973 in the Court of learned Civil Judge (Sr. Division), Bhawanipatna. The suit was decreed on 21.01.1975 granting the relief of recovery of possession. The plaintiff’s father did not prefer any appeal. The defendant also did not take any steps to execute the decree within the statutory period. As such, the plaintiff continued to possess the suit house. Since the defendant issued notices of eviction against him several times, he was constrained to file the suit.

5. The defendant entered appearance and contested the suit by filing written statement challenging the maintainability of the suit. On facts it was averred that the ex-ruler had no authority to execute any agreement with the plaintiff’s father. Even otherwise, the possession of the plaintiff’s father, if any, was permissive in nature and cannot ripen into adverse possession either against the defendant or against the State. The suit is bad for non-joinder of the State since the property stands recorded in its name. Further, the judgment and decree passed in the earlier suit not having been challenged, remains valid and binding. The defendant has every right to seek eviction of the plaintiff from the suit house.

6. Basing on the rival pleadings, the trial Court framed the following issues for determination.

i. Whether the suit is maintainable as pleaded by the plaintiff?

ii. Whether the suit is bad for non-joinder of necessary party i.e. the Govt. of Odisha?

Whether it is legally permissible to declare of earlier decree passed by the Civil Judge (S.D) Bhawanipatna in T’S No.4/1973 to be null and void and not binding upon the plaintiff?

iv. Whether the suit is barred by the principles of Resjudicata?

v. Whether the earlier decree in TS No.4/1973 has attained in its finality in legal term having not executed within statutory period of twelve years?

vi. Whether the plaintiff has acquired his right, title, interest in respect of the suit land by way of adverse possession?

vii. Whether the defendant can be permanently injuncted from disturbing the peaceful possession of the plaintiff over the suit land?

viii. Whether any cause of action arose to bring such a suit by the plaintiff against the defendant?

ix. Whether the Plaintiff is entitled for the reliefs, as sought for?

x. What other relief (s) the plaintiff is entitled for?

5. The trial Court took up Issue Nos.II & III for consideration at the outset observing that the suit land stands recorded in the name of the Government b