A dismissal of an earlier suit without merit does not preclude subsequent claims; the plea of adverse possession admits the owner's title.

JUDGMENT :

A.C. BEHERA, J.

1. This Second Appeal has been preferred by the Appellant against the confirming judgment.

2. The Appellant of this Second Appeal i.e. Shyamabandhu Mishra was the defendant in the suit before the Trial Court, vide O.S. No.4 of 1982-I and he was the appellant in the First Appeal vide T.A. No.6 of 1989.

When during the pendency of this Second Appeal, the Appellant-Shyamabandhu Mishra expired, then his legal heirs have been substituted in his place.

The ancestor/predecessor of the Respondents of this Second Appeal i.e. Lokanath Mishra was the sole plaintiff in the suit before the Trial Court, vide O.S. No.4 of 1982-I and he was the respondent in the First Appeal vide T.A. No.6 of 1989.

But, when during the pendency of the First Appeal vide T.A. No.6 of 1989, the sole plaintiff in the suit vide O.S. No.4 of 1982-I i.e. Lokanath Mishra (who was the appellant in the First Appeal vide T.A. No.6 of 1989) expired, then his LRs were substituted in his place as the respondents in the First Appeal. The said LRs. of the Lokanath Mishra are the Respondents in this Second Appeal.

3. The suit of the plaintiff Lokanath Mishra against the defendant Shyamabandhu Mishra vide O.S. No.4 of 1982-I was a suit for declaration of title over the suit properties and recovery of possession thereof from the defendant.

4. As per the averments made by the plaintiff in his plaint, the suit properties are Ac.0.060 decimals i.e. Plot No.741 under Khata No.59 situated at Kundhebenta Sahi of Puri Town corresponds to Municipal Holding No.701 in Ward No.7. The said suit properties were originally belonged to Kausalya Das Math at Bali Sahi, Puri. Father of the plaintiff i.e. Biswanath Mishra along with Ganeswar Mishra took the suit properties on lease for a period of 20 years in the year 1931 from the Mahanta of Kausalya Das Math through a registered lease deed.

According to the terms of the said lease deed, the lessees i.e. Biswanath Misra (father of the plaintiff) and Ganeswar Mishra constructed a house on the same and lived there jointly. But, unfortunately in the year 1941, their house on the suit properties was damaged due to cyclone. Thereafter, the above two lessees i.e. Biswanath Mishra and Ganeswar Mishra did not renew their lease as per the terms indicated in the lease deed of the year 1931. After expiry of lease in the suit properties, the plaintiff (who was working at Puri Town) intended to take the suit properties from the Kausalya Das Math through a fresh lease, for which, he approached for the same to the Mahanta of Kausalya Das Math. After accepting the request of the plaintiff, the Mahanta of Kausalya Das Math executed a fresh lease on 20.02.1951 for leasing out the suit properties to him (plaintiff) for 20 years. On the basis of that lease dated 20.02.2051, the plaintiff constructed a house on the suit properties and resided in that house with the family members of the plaintiff. The defendant is the son of the elder brother of the plaintiff and accordingly, the defendant is the nephew of the plaintiff. The defendant being the nephew of the plaintiff requested the plaintiff to allow him to reside with them in the house on the suit properties, to which the plaintiff accepted and accordingly, the defendant resided with the plaintiff’s family members in that house on the suit properties since the year 1960.

In the year 1969, the plaintiff went to his native village Biswan