User:Srikanta mishra
IN THE COURT OF THE ADHOC ADDITIONAL DISTRICT JUDGE (1ST TRAC ),
ATHAGARH, DIST: CUTTACK.
R .F.A. NO. 111 of 2006
GOPINATH UPADHAYA AND OTHERS…………Plaintiffs/Appellants
Versus
UTTAM NAIK AND OTHERS …………………….Defendants/Respondents
WRITTEN ARGUMENT OF THE PLAINTIFFS / APPELLANTS
The humble Plaintiffs/Appellants of the above noted suit
Most Respectfully Showeth as follows:
1. That at the initial stage the original suit bearing T.S. No. 3 of 1981 was filed by the father of the present plaintiffs Late Jagannath Upadhaya, before The Addl. Munsif Narasinghpur, for recovery of compensation, permanent injunction against defendants and exclusively for the declaration of his continuation of prescriptive legal rights, only to enjoyment of the mango fruits from the mango trees standing over the suit property which was generation to generation planted, nourished and continuously enjoyed by his forefathers since starting from the year1900 to till date without interruption. 2. That to clarify the valuable original documents filed by the plaintiffs, which has already been exhibited during the course of the suit, it is more pertinent to mention here the forefathers genealogy of the present plaintiffs, which is reads as follows:
GENEALOGY
Late Bholeswar Patajoshi @ Upadhaya
|
Late Lingaraj Patajoshi @ Upadhaya
|
Late Chandrasekhar Upadhaya
|
Late Jagannath Upadhaya
|
|--------------------------------|------------------------------|-----------------------------|-
Gopinath (P.1) Durga Charan(P.2) Kalpana(P.3) Sakuntala ( P.4)
3. That the plaintiffs/ appellants of this suit has come to this Honb`le Court with a hope for bona fide justice, which has still under consideration stretching from the beginning of the suit. The time of more than 27 years has already elapsed for waiting of a kind judicature to adjudicate and propel the significance of justice as the credit is always to be given to the later decisions. 4. That for the proper adjudication of this suit it is necessary to ignore the discouraging orders of the preliminary and subsequent courts except the findings and order of the Hoh`ble High Court in the SECOND APPEAL NO.280 OF 1984, order of dated.07.4.2000. The summary of the Hoh`ble High Court `s contemplate order is a flash of hope for incontestable justice but it is not carried out properly by the learned Court of J.M.F.C Narasinghpur. 5. That in nutshell the order of the Hoh`ble High Court is as follows: ……Para No.1-“Heard……………………it is not necessary to notice in detail the case of rival parties nor the findings of the courts below ……… …………… The plaintiffs claim that he has got right to pluck fruits from the mango trees standing on the disputed land. Such contention having been nagatived by both the courts below. ……………Para No. 2- “The learned counsel ………….has reliance upon the Narasinghpur Tenancy and Revenue Rules stated to be applicable to the ex-State of narasinghpur. Since the question of right of plaintiff is involved. ……………. Plaintiff should have filed an appropriate suit for declaration of right and evidently State would be a necessary party. ……………………………I think interest of justice would be served by vacating the decisions of both courts below and remanding the matter to the trial court. The plaintiffs shall be given opportunity of amending the plaint by impleading the State Government as a party and by claiming appropriate relief regarding declaration of right now claimed in the suit. …………………………the trial court shall issue notice to the State Government and there after decide the matter by permitting the parties to adduce fresh evidence. ………………………………………………………………………………. . 6. That the question arises whether the direction of the Hoh`ble High Court in the SECOND APPEAL NO.280 OF 1984, order of dated.07.4.2000,is properly carried out by the learned JMFC, NARASINGHPUR? In Para No.1- of the SECOND APPEAL NO.280 OF 1984, it has been ordered that … “it is not necessary to notice in detail the case of rival parties nor the findings of the courts below”…. But it is found in the judgement that it is obviously the true copy of the mixture of previous orders of the different courts. The learned JMFC, of Narasinghpur has totally not gone through the case history and overlooked the old valuable authenticated documents filed by the plaintiffs which are exhibited previously from Ext.1 to Ext.13 respectively. 7. That in the same Para the findings of the Hoh`ble High Court reads as: ……… “The plaintiffs claim that he has got right to pluck fruits from the mango trees standing on the disputed land. Such contention having been nagatived by both the courts below”…..…………. In fact the views taken by the lower court as regard to the right of the plaintiffs is not sustainable in the eye of law and the negative views of the courts below has been affected the judgement and supported by the learned JMFC which contrary to the order of the Hoh`ble High Court, as because the judgement of the learned JMFC, of Narasinghpur is a judgement in alternative, in which he just make an effort to corroborate the previous orders which has already been set aside by the Hoh`ble High Court. The plaintiffs has specifically & only claim for their legal prescriptive right to pluck mango fruits from the mango trees standing on the suit land on the basis of documentary evidence, plantation & nourishment of mango trees by their fore fathers and continuous enjoyment of mango fruits year after year with the knowledge of all concerned along with other such consequential relief’s in respect of the other issues arises against the defendants. 8. That the Hoh`ble High Court again repeats the right of the plaintiffs which reads in the Para No. 2- of His order stated as - “The learned counsel ………….has reliance upon the Narasinghpur Tenancy and Revenue Rules stated to be applicable to the ex-State of narasinghpur. Since the question of right of plaintiff is involved, a simple suit for injunction is not appropriate. In fact , plaintiff should have filed an appropriate suit for declaration of right and evidently state would be a necessary party in such a suit.” The learned JMFC of Narasinghpur, totally not considered the Narasinghpur Tenancy and Revenue Rules instead the learned JMFC commented that “the present suit is a peculiar nature of suit”. The right of the plaintiffs has been repeatedly curtailed due to subsequent negative views taken by the learned JMFC, though the Hoh`ble High Court has considered the prayer of the plaintiffs in a positive way and admitted that the right of the plaintiffs is involved in this suit for which the Hoh`ble High Court observe this suit and directed accordingly. 9. That let’s come to the real story of the suit of the plaintiffs which is very simple and specific in nature though it has been very complicatedly induced in the judgement of the JMFC of Narasinghpur. In fact on the schedule “A” land the fore- fathers of the plaintiffs named late Bholeswar Patajoshi @ Upadhaya & late Lingaraj Patajoshi @ Upadhaya, had planted a large numbers of mango trees of different varieties during the year 1900 and onwards, nourished and enjoyed mango fruits as of right which has been proved by Ext.9 - certified copy of the report on dated 26.5.1936 of the record keeper in Revenue Case No. 27/1936 (original marked), the report reveals and establishes that the applicant Chandrasekhar Upadhaya was enjoyed the mango fruits which was planted by his fore-fathers. Ext.6 – Certified copy of Khatian of the year 1918, in respect of Khata No.37 of Mouza - Parbatipur, which has also proves statutory right of Lingaraj Patajoshi for enjoying of mango fruits, in the remark column of Ext.6 it has been proved that “Lingaraj Patajoshi enjoing (Phala Bhogi) 42 nos. of mango trees out of 72 mango trees and enjoying (Phala Bhogi), 4 nos. of mango trees out of 9nos. of mango trees situated on the mango Bagayat.” The fore-father of the plaintiffs, after them the father of the plaintiffs and after him the present plaintiffs has been in peaceful enjoyment of the mango fruits of the mango trees standing over the Schedule-A property with the knowledge of all concerned. 10. That neither the villagers of Parbatipur nor the villagers of Kanlapada has established any right what so ever it may be, over the mango trees standing over the suit property. Not a single piece of paper as regarding to the possession and enjoyment over the mango tope standing over the suit property has been filed or exhibited before the court of justice on behalf of the villagers. The villagers are no way connected with the enjoyment of the mango fruits and they have no right, title, interest and possession over the suit property at any point of time. The disturbing of the defendants to the peaceful enjoyment of the mango fruits by the plaintiffs is illegal and not sustainable in the eye of law. 11. That in the present suit the defendants No.9 Ganeswar Dash, No.10 Bhubaneswar Dash, No.11 Harihar Tripathy, No.18 Collector Cuttack and No.19 Tahasildar Narasinghpur are the only contesting defendants, out of which defendant No.19 Tahasildar Narasinghpur has only submitted his written statement before the court. The other defendants No.1, 2, 3, 4, 12, 13, 14, 16 and 17 are set ex-parte and has admitted and supported the case of the plaintiffs. They are stated in written, which has been Exhibited as mark Ext. 3(a), which is an unregistered declaration of dated 01.4.1974, executed by the villagers of Kanlapada in favour of the father of the plaintiffs Late Chandrasekher Patajoshi which revels and proves that the plantation of mango trees by the ancestors of the plaintiffs, they are also strongly admitted about the maintenance and enjoyment of mango fruits by the ancestors of the plaintiffs as well as the plaintiffs themselves. 12. That as regard to the plantation of the trees the deposition of the witness No.2 in TS 3 of 1981 is most vital. The witness named Artatrana Mishra, stated that “I was working as a Forest Ranger before merger of State from 1931 to 1945 and 1947 to 1948.” He further stated that “I have seen the suit land which consist of more than one hundred mango trees, which are planted, nourished and enjoyed by Upadhaya family. The suit land was recorded in the name of Lingaraj Upadhaya. Lingaraj Upadhaya has planted the trees and enjoyed the fruits.” 13. That it has been clearly stated in the “Report on the Completion of the Settlement of Land Revenue of the Narasinghpur Feudatory State” in Chapter-IV under heading “Present Settlement” at page-17 it averred that “If trees have been planted on state lands by any tenant, the state has right over half the fruit and the planters to get the other half, though the state has right over the half the fruit, in practice very little is taken by the state.” That means the planters of the trees enjoy the total fruits. It may kindly be noted here that the provisions of the above settlement report, which codified the Revenue Law, was the statutory law prevailing at that time. 14. That after the death of Lingaraj Patajoshi in the year 1924, his son Chandrasekhar Upadhayahas continued to enjoy the mango fruits from the mango trees standing over the Schedule “A” land like his father & grand father and maintained the same. At the time of 1936 Chandrasekhar has made an application as of right for lease of the suit land and trees standing thereon before the Dewan of the State. Dewan was enquired through his revenue officials which has been mentioned in Ext. No.7(a), in Revenue order No.27 of 1936, dated 30.5.1936, it is stated that “the petitioners are enjoying the fruits of the trees.” He again stated that “the villagers of Parbatipur have no objection to the petitioners enjoying the fruits of the mango trees.” It is again more pertinent to mention here about the Ext 9- in which R.K visited the spot in presence of the villagers of Parbatipur and reported that “the villagers have no objection of the enjoyment of fruits by the petitioners as the ancestors of the petitioners are planted the mango trees on the suit land and enjoyed the mango fruits accordingly.” The Dewan has submitted his report along with records to the Ruling Chief for favour of instruction. After that the Raja & Ruling Chief of Narasinghpur State Hon`ble A.M.Mohapatra has passed order on dated 02.6.1936 in favour of the petitioner. This vital record of the plaintiff has been overlooked. Law is well settled that “documentary evidence must prevail over oral evidence.” 15. That the Ext 8 is the certified copy of the Amins report of dated 22.5.1936 in the Revenue Case No.27/1936 of the court of THE RAJA & RULLING CHIEF OF Narasinghpur STATE (original marked) is also a most vital documentary proof as regard to the plantation and enjoyment of mango trees by the forefathers of the plaintiffs. The enjoyment of fruits by the ancestors of the plaintiffs during the year 1900 to 1936 is peaceful, continuous and with the knowledge of the Darbar. It is most evident here that the suit land never transferred to the village panchayat at any point of time, the documents filed by the defendants are not proved before the court of law and not also vital enough to proof of transfer of mango tope nor it is a final or conclusion to decide and to curtail the long standing prescriptive enjoyment of the plaintiffs as of right over the suit property. The documents exhibited by the defendants are not binding to this suit, nor it is proof itself a hurdles to declare the hereditary right of the plaintiffs. 16. That the plea taken by the trial court in his findings in judgement which averred in Para No.5, in which issue No.2 & 9 are taken together are unsustainable in the eye of law. Both the issues are the seed of this suit and the sole prayer of the plaintiffs. Issue No.2 reads, “Has the plaintiff right to enjoy the usufructs of the mango trees standing in the suit land?” In these issues the stand of the plaintiffs is that the right of enjoyment of fruits of mango trees standing over the suit land is continued since their fore-fathers time as of right, as per the order of the Raja & Ruling Chief of Narasinghpur State, Hon`ble A.M.Mohapatra, has passed order in Revenue Case No.27/1936, on dated 02.6.1936 in favour of the petitioner (ancestor of the plaintiffs named Sri Chandra), which reads “He may get the rights of enjoying the fruits of the trees only. Inform accordingly.” That neither the order of the Ruling Chief has been challenged by anybody nor any authority of law has yet canceled it. 17. That the other evidentiary facts and materials in evidence are same as the written argument which was filed before the JMFC of Narasinghpur along with the memo of citations may kindly be treated as the part of this written argument. Last but not least the petition filed by the plaintiffs/appellants in this suit before this Honb`le Court is also to be treated as the part and partial of this written argument.
Hence in view of the above facts, observations & directions of the Hon`ble High Court, considering documentary evidence exhibited by the plaintiffs, depositions of the witnesses of the plaintiffs, presented citations and law Your Honour may kind enough to declare the exclusive right of the half of enjoyment of mango fruits from the mango trees standing over the Schedule (A) property in favour of the plaintiffs along with other such consequential relief’s as prayed for, by set asiding the order of the lower court and for the ends of justice.
IN THE COURT OF THE ADHOC ADDITIONAL DISTRICT JUDGE (1ST TRAC ),
ATHAGARH, DIST: CUTTACK.
R .F.A. NO. 111 of 2006
GOPINATH UPADHAYA AND OTHERS…………Plaintiffs/Appellants
Versus
UTTAM NAIK AND OTHERS …………………….Defendants/Respondents
WRITTEN ARGUMENT OF THE PLAINTIFFS / APPELLANTS
The humble Plaintiffs/Appellants of the above noted suit
Most Respectfully Showeth as follows:
1. That at the initial stage the original suit bearing T.S. No. 3 of 1981 was filed by the father of the present plaintiffs Late Jagannath Upadhaya, before The Addl. Munsif Narasinghpur, for recovery of compensation, permanent injunction against defendants and exclusively for the declaration of his continuation of prescriptive legal rights, only to enjoyment of the mango fruits from the mango trees standing over the suit property which was generation to generation planted, nourished and continuously enjoyed by his forefathers since starting from the year1900 to till date without interruption. 2. That to clarify the valuable original documents filed by the plaintiffs, which has already been exhibited during the course of the suit, it is more pertinent to mention here the forefathers genealogy of the present plaintiffs, which is reads as follows:
GENEALOGY
Late Bholeswar Patajoshi @ Upadhaya
|
Late Lingaraj Patajoshi @ Upadhaya
|
Late Chandrasekhar Upadhaya
|
Late Jagannath Upadhaya
|
|--------------------------------|------------------------------|-----------------------------|-
Gopinath (P.1) Durga Charan(P.2) Kalpana(P.3) Sakuntala ( P.4)
3. That the plaintiffs/ appellants of this suit has come to this Honb`le Court with a hope for bona fide justice, which has still under consideration stretching from the beginning of the suit. The time of more than 27 years has already elapsed for waiting of a kind judicature to adjudicate and propel the significance of justice as the credit is always to be given to the later decisions. 4. That for the proper adjudication of this suit it is necessary to ignore the discouraging orders of the preliminary and subsequent courts except the findings and order of the Hoh`ble High Court in the SECOND APPEAL NO.280 OF 1984, order of dated.07.4.2000. The summary of the Hoh`ble High Court `s contemplate order is a flash of hope for incontestable justice but it is not carried out properly by the learned Court of J.M.F.C Narasinghpur. 5. That in nutshell the order of the Hoh`ble High Court is as follows: ……Para No.1-“Heard……………………it is not necessary to notice in detail the case of rival parties nor the findings of the courts below ……… …………… The plaintiffs claim that he has got right to pluck fruits from the mango trees standing on the disputed land. Such contention having been nagatived by both the courts below. ……………Para No. 2- “The learned counsel ………….has reliance upon the Narasinghpur Tenancy and Revenue Rules stated to be applicable to the ex-State of narasinghpur. Since the question of right of plaintiff is involved. ……………. Plaintiff should have filed an appropriate suit for declaration of right and evidently State would be a necessary party. ……………………………I think interest of justice would be served by vacating the decisions of both courts below and remanding the matter to the trial court. The plaintiffs shall be given opportunity of amending the plaint by impleading the State Government as a party and by claiming appropriate relief regarding declaration of right now claimed in the suit. …………………………the trial court shall issue notice to the State Government and there after decide the matter by permitting the parties to adduce fresh evidence. ………………………………………………………………………………. . 6. That the question arises whether the direction of the Hoh`ble High Court in the SECOND APPEAL NO.280 OF 1984, order of dated.07.4.2000,is properly carried out by the learned JMFC, NARASINGHPUR? In Para No.1- of the SECOND APPEAL NO.280 OF 1984, it has been ordered that … “it is not necessary to notice in detail the case of rival parties nor the findings of the courts below”…. But it is found in the judgement that it is obviously the true copy of the mixture of previous orders of the different courts. The learned JMFC, of Narasinghpur has totally not gone through the case history and overlooked the old valuable authenticated documents filed by the plaintiffs which are exhibited previously from Ext.1 to Ext.13 respectively. 7. That in the same Para the findings of the Hoh`ble High Court reads as: ……… “The plaintiffs claim that he has got right to pluck fruits from the mango trees standing on the disputed land. Such contention having been nagatived by both the courts below”…..…………. In fact the views taken by the lower court as regard to the right of the plaintiffs is not sustainable in the eye of law and the negative views of the courts below has been affected the judgement and supported by the learned JMFC which contrary to the order of the Hoh`ble High Court, as because the judgement of the learned JMFC, of Narasinghpur is a judgement in alternative, in which he just make an effort to corroborate the previous orders which has already been set aside by the Hoh`ble High Court. The plaintiffs has specifically & only claim for their legal prescriptive right to pluck mango fruits from the mango trees standing on the suit land on the basis of documentary evidence, plantation & nourishment of mango trees by their fore fathers and continuous enjoyment of mango fruits year after year with the knowledge of all concerned along with other such consequential relief’s in respect of the other issues arises against the defendants. 8. That the Hoh`ble High Court again repeats the right of the plaintiffs which reads in the Para No. 2- of His order stated as - “The learned counsel ………….has reliance upon the Narasinghpur Tenancy and Revenue Rules stated to be applicable to the ex-State of narasinghpur. Since the question of right of plaintiff is involved, a simple suit for injunction is not appropriate. In fact , plaintiff should have filed an appropriate suit for declaration of right and evidently state would be a necessary party in such a suit.” The learned JMFC of Narasinghpur, totally not considered the Narasinghpur Tenancy and Revenue Rules instead the learned JMFC commented that “the present suit is a peculiar nature of suit”. The right of the plaintiffs has been repeatedly curtailed due to subsequent negative views taken by the learned JMFC, though the Hoh`ble High Court has considered the prayer of the plaintiffs in a positive way and admitted that the right of the plaintiffs is involved in this suit for which the Hoh`ble High Court observe this suit and directed accordingly. 9. That let’s come to the real story of the suit of the plaintiffs which is very simple and specific in nature though it has been very complicatedly induced in the judgement of the JMFC of Narasinghpur. In fact on the schedule “A” land the fore- fathers of the plaintiffs named late Bholeswar Patajoshi @ Upadhaya & late Lingaraj Patajoshi @ Upadhaya, had planted a large numbers of mango trees of different varieties during the year 1900 and onwards, nourished and enjoyed mango fruits as of right which has been proved by Ext.9 - certified copy of the report on dated 26.5.1936 of the record keeper in Revenue Case No. 27/1936 (original marked), the report reveals and establishes that the applicant Chandrasekhar Upadhaya was enjoyed the mango fruits which was planted by his fore-fathers. Ext.6 – Certified copy of Khatian of the year 1918, in respect of Khata No.37 of Mouza - Parbatipur, which has also proves statutory right of Lingaraj Patajoshi for enjoying of mango fruits, in the remark column of Ext.6 it has been proved that “Lingaraj Patajoshi enjoing (Phala Bhogi) 42 nos. of mango trees out of 72 mango trees and enjoying (Phala Bhogi), 4 nos. of mango trees out of 9nos. of mango trees situated on the mango Bagayat.” The fore-father of the plaintiffs, after them the father of the plaintiffs and after him the present plaintiffs has been in peaceful enjoyment of the mango fruits of the mango trees standing over the Schedule-A property with the knowledge of all concerned. 10. That neither the villagers of Parbatipur nor the villagers of Kanlapada has established any right what so ever it may be, over the mango trees standing over the suit property. Not a single piece of paper as regarding to the possession and enjoyment over the mango tope standing over the suit property has been filed or exhibited before the court of justice on behalf of the villagers. The villagers are no way connected with the enjoyment of the mango fruits and they have no right, title, interest and possession over the suit property at any point of time. The disturbing of the defendants to the peaceful enjoyment of the mango fruits by the plaintiffs is illegal and not sustainable in the eye of law. 11. That in the present suit the defendants No.9 Ganeswar Dash, No.10 Bhubaneswar Dash, No.11 Harihar Tripathy, No.18 Collector Cuttack and No.19 Tahasildar Narasinghpur are the only contesting defendants, out of which defendant No.19 Tahasildar Narasinghpur has only submitted his written statement before the court. The other defendants No.1, 2, 3, 4, 12, 13, 14, 16 and 17 are set ex-parte and has admitted and supported the case of the plaintiffs. They are stated in written, which has been Exhibited as mark Ext. 3(a), which is an unregistered declaration of dated 01.4.1974, executed by the villagers of Kanlapada in favour of the father of the plaintiffs Late Chandrasekher Patajoshi which revels and proves that the plantation of mango trees by the ancestors of the plaintiffs, they are also strongly admitted about the maintenance and enjoyment of mango fruits by the ancestors of the plaintiffs as well as the plaintiffs themselves. 12. That as regard to the plantation of the trees the deposition of the witness No.2 in TS 3 of 1981 is most vital. The witness named Artatrana Mishra, stated that “I was working as a Forest Ranger before merger of State from 1931 to 1945 and 1947 to 1948.” He further stated that “I have seen the suit land which consist of more than one hundred mango trees, which are planted, nourished and enjoyed by Upadhaya family. The suit land was recorded in the name of Lingaraj Upadhaya. Lingaraj Upadhaya has planted the trees and enjoyed the fruits.” 13. That it has been clearly stated in the “Report on the Completion of the Settlement of Land Revenue of the Narasinghpur Feudatory State” in Chapter-IV under heading “Present Settlement” at page-17 it averred that “If trees have been planted on state lands by any tenant, the state has right over half the fruit and the planters to get the other half, though the state has right over the half the fruit, in practice very little is taken by the state.” That means the planters of the trees enjoy the total fruits. It may kindly be noted here that the provisions of the above settlement report, which codified the Revenue Law, was the statutory law prevailing at that time. 14. That after the death of Lingaraj Patajoshi in the year 1924, his son Chandrasekhar Upadhayahas continued to enjoy the mango fruits from the mango trees standing over the Schedule “A” land like his father & grand father and maintained the same. At the time of 1936 Chandrasekhar has made an application as of right for lease of the suit land and trees standing thereon before the Dewan of the State. Dewan was enquired through his revenue officials which has been mentioned in Ext. No.7(a), in Revenue order No.27 of 1936, dated 30.5.1936, it is stated that “the petitioners are enjoying the fruits of the trees.” He again stated that “the villagers of Parbatipur have no objection to the petitioners enjoying the fruits of the mango trees.” It is again more pertinent to mention here about the Ext 9- in which R.K visited the spot in presence of the villagers of Parbatipur and reported that “the villagers have no objection of the enjoyment of fruits by the petitioners as the ancestors of the petitioners are planted the mango trees on the suit land and enjoyed the mango fruits accordingly.” The Dewan has submitted his report along with records to the Ruling Chief for favour of instruction. After that the Raja & Ruling Chief of Narasinghpur State Hon`ble A.M.Mohapatra has passed order on dated 02.6.1936 in favour of the petitioner. This vital record of the plaintiff has been overlooked. Law is well settled that “documentary evidence must prevail over oral evidence.” 15. That the Ext 8 is the certified copy of the Amins report of dated 22.5.1936 in the Revenue Case No.27/1936 of the court of THE RAJA & RULLING CHIEF OF Narasinghpur STATE (original marked) is also a most vital documentary proof as regard to the plantation and enjoyment of mango trees by the forefathers of the plaintiffs. The enjoyment of fruits by the ancestors of the plaintiffs during the year 1900 to 1936 is peaceful, continuous and with the knowledge of the Darbar. It is most evident here that the suit land never transferred to the village panchayat at any point of time, the documents filed by the defendants are not proved before the court of law and not also vital enough to proof of transfer of mango tope nor it is a final or conclusion to decide and to curtail the long standing prescriptive enjoyment of the plaintiffs as of right over the suit property. The documents exhibited by the defendants are not binding to this suit, nor it is proof itself a hurdles to declare the hereditary right of the plaintiffs. 16. That the plea taken by the trial court in his findings in judgement which averred in Para No.5, in which issue No.2 & 9 are taken together are unsustainable in the eye of law. Both the issues are the seed of this suit and the sole prayer of the plaintiffs. Issue No.2 reads, “Has the plaintiff right to enjoy the usufructs of the mango trees standing in the suit land?” In these issues the stand of the plaintiffs is that the right of enjoyment of fruits of mango trees standing over the suit land is continued since their fore-fathers time as of right, as per the order of the Raja & Ruling Chief of Narasinghpur State, Hon`ble A.M.Mohapatra, has passed order in Revenue Case No.27/1936, on dated 02.6.1936 in favour of the petitioner (ancestor of the plaintiffs named Sri Chandra), which reads “He may get the rights of enjoying the fruits of the trees only. Inform accordingly.” That neither the order of the Ruling Chief has been challenged by anybody nor any authority of law has yet canceled it. 17. That the other evidentiary facts and materials in evidence are same as the written argument which was filed before the JMFC of Narasinghpur along with the memo of citations may kindly be treated as the part of this written argument. Last but not least the petition filed by the plaintiffs/appellants in this suit before this Honb`le Court is also to be treated as the part and partial of this written argument.
Hence in view of the above facts, observations & directions of the Hon`ble High Court, considering documentary evidence exhibited by the plaintiffs, depositions of the witnesses of the plaintiffs, presented citations and law Your Honour may kind enough to declare the exclusive right of the half of enjoyment of mango fruits from the mango trees standing over the Schedule (A) property in favour of the plaintiffs along with other such consequential relief’s as prayed for, by set asiding the order of the lower court and for the ends of justice.
BY THE ADVOCATE Srikanta Mishra,Kanpur,Cuttack,Odisha,India-754037 mobile: +91-9937939799,91-7978079449