IMPORTANT POINT
Title – Weakness in defendant’s claim for title to property cannot establish plaintiff’s title.

JUDGMENT

Ananda Chandra Behera, J.—This 2nd Appeal has been preferred against the reversing Judgment.

2. The appellant in this 2nd Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.11 of 1986 and respondent before the 1st Appellate Court in the 1st Appeal vide T.A. No.50/2 of 1988/89.

The respondent in this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.11 of 1986 and appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.50/2 of 1988/89.

3. The suit of the plaintiff (appellant) vide T.S. No.11 of 1986 was a suit for declaration of title and eviction against the defendant (respondent).

4. The case of the plaintiff before the Trial Court against the defendant as per the averments made in his plaint was that, the properties described in Schedule “A” of the plaint measuring an area of Ac.3.65 decimals was Government waste land, to which, he (plaintiff) was possessing since 1951. For which, an encroachment case vide Encroachment Case Nos.66/63 of 63/64 was initiated against him (plaintiff), but the said Schedule “A” properties were settled in the name of the plaintiff as per order passed in Lease Case No.114 of 1971 by the Tahasildar after receiving Rs.288/- as Salami from him (plaintiff) and the possession of that Schedule “A” properties was delivered to him (plaintiff) through the revenue inspector formally in the year 1972. Accordingly, the plaintiff was in peaceful possession over the properties described in Schedule “A” of the plaint.

The schedule “B” properties being the part of Schedule “A” properties are the disputed properties in the suit. Therefore, Schedule “B” properties are the suit properties. In October, 1982, the defendant forcibly trespassed into the “B” schedule suit properties. For which, a case under Section 145 of the Cr.P.C., 1973 vide Criminal Misc. Case No.41/1982 was initiated in the Court of S.D.M, Kuchinda between him (plaintiff) and defendant. In that criminal Misc. Case No.41 of 1982, the S.D.M, Kuchinda wrongfully declared the possession of the defendant over the “B” schedule suit properties on dated 18.10.1985. Therefore, the plaintiff approached the Civil Court by filing the suit vide T.S. No.11 of 1986 against the defendant praying for declaration of his right, title and interest over the “B” schedule suit properties and to recover the possession of the suit properties from the defendant evicting the defendant from the same.

5. Having been noticed from the Trial Court in the suit vide T.S. No.11 of 1986, the defendant contested the same filing his written statement denying the allegations alleged by the plaintiff against him (defendant) taking his stands specifically therein that, the plaintiff was/is not in possession over the “B” schedule properties at any point of time. According to him, he (defendant) had reclaimed the “B” schedule suit properties and he is in possession over the same since last 30 to 35 years. He (defendant) had applied before the Tahasildar for leasing out the “B” Schedule suit properties in his favour and on the basis of his application, a lease case vide Lease Case No.114 of 1971 was initiated in respect of that “B” schedule suit properties and an enquiry was conducted. In the meantime, Major Settlement Operation started, for which, the Tahasildar submitted the records of Lease Case No.114 of 1971 before the Settlement Authorities, but the Settlement Authorities subsequently returned back the said case to the Tahasildar giving observations that, the matter is within the competency of the Tahasildar but not the Settlement Authorities. After return of the Lease Case No.114 of 1971 to the Tahasildar, Tahasildar without issuing any notice of proclamation and without hearing any objection, the Tahasildar, illegally issued Patta in respect of “B” schedule suit properties in favour of the plaintiff. After knowing about the same, the defendant objected before the Tahasildar against the issuance of Patta in respec