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2001 DIGILAW 455 (ORI)

Daulat Sahu v. Sahadev Meher

2001-10-15

B.PANIGRAHI

body2001
JUDGMENT B. PANIGRAHI, J. — This appeal is directed against an order passed by the learned Civil Judge (Senior Division), Sonepur, in M.J.C. No. 22 of 2001 arising out of an application under Order 39, Rules 1 and 2 as well as under Order 40, Rule 1, read with Section 151, Code of Civil Procedure, whereby and whereunder, the appellants were restrained from entering into the suit land till disposal of the suit. 2. The factual matrix leading to this appeal is as follows : Originally the suit property appertaining to 4th. Settlement Khata Nos. 55 and 46 of mouza Rugudipali belonged to one Sitanshu Sekhar Singhdeo who was in possession of the same till he trans¬ferred the property in favour of Rameswar Lal Singhdeo and Sataru¬pa Devi by means of sale deed and gift deed respectively. There¬after Rameswarlal Singhdeo and Satarupa Devi possessed the suit land in their own right by virtue of the deed of conveyance/deed of gift. Rameswarlal Singhdeo and Satarupa appointed Daulat Sahu, present respondent No. 1 as their Power-of-Attorney holder for the purpose of cultivating, managing, supervising and disposing of the suit property. By virtue of the said Power-of-Attorney, respondent No. 1 had claimed to be in possession of the suit property. Subsequent to the execution of Power-of-Attorney, it is claimed that respondents 1 to 4 purchased Schedule-A land from the said owners and as such they have claimed exclusive right over the said property. The said original owners transferred Schedule-B properties in favour of respondent No. 3 and respond¬ent Nos. 5 to 16 by executing different deeds of conveyance. After execution of such sale deeds, the vendee-respondents have claimed to have been in possession of the same. In the 5th. Set¬tlement, the names of their vendors, namely Rameswarlal Singhdeo and Satarupa Devi were recorded separately. In the meantime, the names of the purchasers have already been mutated in respect of ‘B’ Schedule lands and they have been paying rent in token of their possession. Since the appellants created disturbances over their peaceful possession, therefore, there was a proceeding initiated under Section 145, Cr.P.C. in which the learned Execu¬tive Magistrate by invoking the power under Section 146 (1), Cr.P.C. on ground of emergency attached to disputed lands. Since the appellants created disturbances over their peaceful possession, therefore, there was a proceeding initiated under Section 145, Cr.P.C. in which the learned Execu¬tive Magistrate by invoking the power under Section 146 (1), Cr.P.C. on ground of emergency attached to disputed lands. The appellants had, however, admitted that the lands belonged to Sitanshu Sekhar Singhdeo, but claimed that he was never in pos¬session of the same and, on the other hand, the appellants are in continuous possession. It has been further stated that those lands were treated as Bhogra lands and the same vested in Govern¬ment after abolition of the estate. Therefore, after vesting operation they have acquired right of occupancy in respect of the suit land and have been in possession till the land was attached by the Criminal Court. After the lands were attached by the Executive Magistrate, the respondents have filed the civil suit for declaration of their right in which they prayed for temporary injunction or alternatively for appointment of receiver, but the learned Civil Judge (Senior Division) on considering the case of both the parties from every angle deemed it appropriate to in¬junct the appellants from interfering with the possession of the respondents. Therefore, being aggrieved by and affected with the order passed by the Court below, they have preferred this appeal. 3. Mr. Ramdas, learned Senior Counsel appearing for the appellants has at the outset invited my attention that the learned Court below has no jurisdiction to restrain one of the parties to the suit before adjudicating inter se rights. He further stated that it was premature to restrain the appellants before finally deciding upon the rights of the parties and if such order is worked out, it would amount to pre-judging the case of both parties and it would ultimately prejudice the mind of the Court. In such event, the learned Civil Judge (Senior Division) should have at least upheld the order of the Executive Magistrate by appointing a receiver to take charge of the land. 4. Mr. Misra, learned counsel appearing for the plaintiff-respondents while supporting the order of the Court below has submitted that the respondents are the purchasers from the admit¬ted owners and have been in possession. The learned Executive Magistrate, therefore, by invoking his emergency power attached the lands and referred the matter to the Civil Court. 4. Mr. Misra, learned counsel appearing for the plaintiff-respondents while supporting the order of the Court below has submitted that the respondents are the purchasers from the admit¬ted owners and have been in possession. The learned Executive Magistrate, therefore, by invoking his emergency power attached the lands and referred the matter to the Civil Court. Be that as it may, the order of the Court below cannot be found fault with, inasmuch as, it has protected the interest of the original owners even before the conclusion of the suit. In that view of the matter, since the appeal has no merits, it should be dismissed in limine. 5. Upon considering the submissions and counter submis¬sions advanced by both parties and looking to the facts of the case, it is found that the lands originally belonged to Rameswar and Satarupra. The respondents have claimed possession through several deeds of conveyance, whereas the appellants have claimed occupancy right over the suit lands which has to be adjudicated in the suit. But for the time being since the respondents are claiming to be in possession of the property, interest of justice would be better served if respondent No. 1 is appointed as re¬ceiver in respect of the entire suit lands. Accordingly, I direct that respondent No. 1 shall be the receiver in respect of the suit lands. He shall render accounts every year on or before 31st March of every succeeding year upon serving a copy of such ac¬counts on the defendants-appellants. It is needless to say that in case respondent No. 1 who has been appointed as receiver by this Court is obstructed by the appellants, then the local police will render all possible help to him. 6. Mr. Ramdas, learned counsel for the appellants has submitted that since large extent of land has been involved and parties are numerous, therefore, the trial Court should be asked to expedite the hearing of the suit. Mr. Misra, learned counsel for the respondents has no objection to such submission. Accord¬ingly, the Civil Judge (Senior Division) is directed to expedite the hearing of the suit and dispose of the same preferably within six months from the date of communication of the order, if it is otherwise ready. 7. With the above observation, the Misc. Appeal is dis¬posed of, but in the circumstances, without any order as to cost. Appeal disposed of.