Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. Defendant is the appellant against a confirming judgment.
2. Case of the plaintiff is that the suit land was originally recorded in the name of Rath Panigrahi, predecessor-in-interest of the defendant. One Narayan Panda purchased the suit property in a court auction and took delivery of possession. He sold the same to Baidyanath Raut by means of a registered sale deed dated 1.5.1945. Arjun Sahu and his brothers Bansidhar and Baishnab purchased the suit land from Badyanath by means of a registered sale deed dated 18.11.1946. Possession of the land was delivered to the vendees. Bansidhar and Baishnaba were issueless. After their death, Arjuna, father of the plaintiffs, became the sole owner of the suit property. Major Settlement operation in the area, where the suit land falls, started in the year 1962. The ROR was finally published in the year 1968. Arjuna died prior to 1962. The defendant managed to get the suit land recorded in his name. In the year 1978, the defendant tried to dispossess the plaintiffs from the suit land. With this factual scenario, they instituted O.S. No. 160 of 1978 in the court of the learned Munsif, Balasore for correction of record of right through their next friend, since they were minors.
3. The defendant filed a written statement denying the assertions made in the plaint. Case of the defendant is that the suit land is his ancestral homestead. He is in possession of the same for more than twelve years and as such perfected title by way of adverse possession.
4. On the inter se pleadings of the parties, learned trial court struck eight issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. Learned trial court came to hold that defendant and his predecessor-in-interest were dispossessed from their ancestral homestead land. The plaintiffs' vendor took possession over the suit land. The suit is not barred by limitation. Held so, the learned trial court decreed the suit. Unsuccessful defendant challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Balasore, which was eventually dismissed.
5. The appeal was admitted on the following substantial question of law;
"1. Whether in the instant case benefit under Sec. 6 of the Limitation Act can at all be availed of by the plaintiffs ?
2. From the aforesaid facts, presumption as to final publication arising in favour of the defendant as per Ext. A, whether would not support the case of defendant of possession of the disputed land throughout ever since the first ROR Ext. B relating to 1330 settlement where the property stands in the names of the predecessor in interest of defendant ?
3. For that in view of Sec. 27 of the Limitation Act that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.", the substantial question of law that arises for consideration that a presumption U/s 13 of the Orissa Survey and Settlement Act being in favour of defendant that the ROR Ext. A is conclusive, whether in the absence of any suit for recovery of possession within the statutory period by the plaintiffs, the defendant does acquire suit property by prescriptive right of acquisition?"
6. Heard Mr. S.P. Mohanty along with Mr. P.K. Lenka, learned counsel for the appellant and Mr. A.K. Mishra, learned counsel for the respondents.
7. Mr. Mohanty, learned counsel for the appellant argued with vehemence that the record-of-right was published in the year 1968, when the plaintiffs were minors. The period of limitation for filing the suit is three years U/s 42 of the Orissa Survey & Settlement Act. Since the plaintiffs suffered from legal disabilities, suit should have been filed in the year 1971 or within three years after ce........