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RSA No.207 of 2014

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.207 of 2014

In the matter of appeal under Section 100 of the Code of Civil Procedure

assailing the judgment and decree dated 27.12.2013 and 07.01.2014

respectively passed by the learned 1^st Additional District Judge,

Berhmapur, Ganjam in R.F.A. No.09 of 2013 (R.F.A. No.47 of 2011

GDC) confirming the judgment and decree dated 30.04.2011 and

13.05.2011 respectively passed by the learned Civil Judge, Junior

Division, Berhampur in Civil Suit No.237 of 2004.

----

Sri Giridhari Pradhan & Others

….

Appellants

-versus-

Kaibalya Pradhan (Since Dead) by

his LR and Others

….

Respondents

Appeared in this case by Hybrid Arrangement

(Virtual/Physical Mode):

For Appellants

-

Mr.R.K. Mohanty

(Senior Advocate)

For Respondents -

Mr.Smt. Baijayanti Mohanty

(Advocate for R.1(a) & R.2(b))

Mr.L.Samantaray

(Advocate for R.3 to 5)

CORAM:

MR. JUSTICE D.DASH

Date of Hearing : 20.09.2022 : Date of Judgment:27.01.2023

D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the

Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the

judgment and decree dated 27.12.2013 and 07.01.2014 respectively

passed by the learned 1^st Addition District Judge, Berhmapur, Ganjam in

R.F.A. No. 09 of 2013 (R.F.A. No.47 of 2011 GDC).

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RSA No.207 of 2014

By the same, the Appeal filed by the present Appellants under

section 96 of the Code, has been dismissed and thereby the judgment

and decree dated 30.04.2011 and 13.05.2011 respectively passed by the

learned Civil Judge, Junior Division, Berhampur in Civil Suit No.237 of

2004, have been confirmed.

The suit filed by these Appellants, as the Plaintiffs arraigning the

Respondents as the Defendants has thus been dismissed and

accordingly, they have been non-suited.

It may be stated here that the legal representatives of Respondent

Nos.1 and 2, having died during pendency of this Appeal, their legal

representatives being substituted are now on record.

2.

For the sake of convenience, in order to avoid confusion and bring

in clarity, the parties hereinafter have been referred to, as they have been

arraigned in the Trial Court.

3.

The Plaintiff’s case is that one Chanchana Pradhan of Village-

Tarinipentha was the owner of the suit lands and as such was in

possession of the same. It is said that the suit land had been settled in his

favour by an order passed by the Competent Authority in OLR Case

No.17 of 1978. Said Chanchana had sold away the suit land to Lingaraj

Pradhan, who is the predecessor-in-interest of the Plaintiffs. The sale

was by execution of a registered sale deed dated 25.01.1994. The

Tahasildar, Berhampur then accordingly mutated the suit land in terms

of the order passed in Mutation Case No.6893 of 1995.

The Defendant No.1, however, filed an appeal, i.e., M.A. No.22

of 1998. In that appeal, he claimed to be in possession of the suit

property. The appeal then stood disposed of with a direction for

reopening of the mutation case for its hearing afresh and disposal in

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RSA No.207 of 2014

accordance with law. The Mutation Officer, upon rehearing, recalled the

earlier order of mutation of the suit land in favour of Lingaraj and it was

thereunder allowed in favour of Defendant No.1. The Plaintiffs being

aggrieved by the said order, filed Mutation Appeal No.4 of 2008.

However, finding that the title over the suit land is in dispute and

consequently, the right to possess the present suit land, the suit has came

to be filed.

4.

The Defendants 1 to 3 have filed the written statement. It may be

stated here that the Defendants 2 is the wife of Defendant No.1 and

Defendant No.3 is the son of Defendant No.1. They state that

Chanchana was never in possession of the suit land. It is stated that the

order of settlement of the suit land in fa