Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 159 (ORI)

SRIKANTHA MANDAL v. GOVERNMENT OF ORISSA

2002-03-14

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy 1. Heard. 2. This Civil Revision is disposed of on consent and participation of both the parties, at the stage of admission. 3. Learned counsel for the petitioner files certified copy of the order passed by learned Civil Judge (Senior Division), Balasore in Misc. Case No. 584 of 1 996. 4. Petitioner filed O. S. No. 434 of 1996-1, inter alia with the prayer for declaration of his right, title and interest on the suit property described in the schedule of the plaint. He filed an application under Order 39, Rules 1 and 2, C.P.C. registered as Misc. Case No. 584 of 1996 with the prayer to restrain the State Government represented through the Collector, Balasore and the Tahasildar, Baliapal not to evict him from the suit land and accordingly to issue an order of interim injunction. In that respect case of the plaintiff is that he is in possession of the suit land from the days of his father and matured his possessory title against the State. Though in the impugned orders of the courts below it has been noted that in the pleading of the petitioner he has stated about his possession over 12 years, but learned counsel for the petitioner states that in the plaint petitioner has clearly averred about such possession since last 50 years (by the date of filing of the suit). The admitted position on record is that the disputed land has been recorded as 'Gramya Jungle' belonging to reserved category. The defendants/ opposite party members while contesting the application for injunction, advanced the contention that the claim of the plaintiff of long possession is a myth. Accordingly to them plaintiff made encroachment of the suit land in the year 1996 and since it is objectionable and illegal, therefore, Land Encroachment Case No. 7 of 1997 was initiated against him and when the plaintiff did not appear and participate in that proceeding initiated under the provision in Orissa Prevention of Land Encroachment Act, 1972 (in short, 'the Act, 1972'), therefore, that proceeding terminated against the plaintiff with an order of eviction. Defendants also advanced the plea that since a pond and the ridge of that pond exist on a portion of the disputed premises and the land has been recorded as 'Rakhit' in the Hal settlement, therefore, the claim of the plaintiff behind the back of the villagers will cause injustice to them and should not be entertained unless the villagers are made parties to the proceeding. 5. While learned Civil Judge (Senior Division) refused to grant interim injunction on the ground of absence of prima facie case and want of the balance of convenience and irreparable loss in favour of the petitioner, the lower Appellate Court while recording the finding that petitioner has advanced an arguable case though not a very strong arguable case, yet he is not entitled to the relief of inunction since the balance of convenience does not lean in his favour nor he will suffer irreparable loss and injury. 6. In course of argument learned counsel for the petitioner states that except the oral ascertain of the petitioner regarding long possession over 50 years there is no other material available on record to support the stand of petitioner's possession over the disputed case land. Therefore, it essentially follows that such oral evidence has to be appropriately considered to find out if the contention of the petitioner is acceptable in support of his plea of adverse possession. Apart from that, the category of the land having been recorded as 'Rural Jungle' under 'Rakhit Khata' and order of eviction having already been passed in the proceeding under the Act 1972 thus in view the provision of Section 41(b) of the Specific Relief Act and the aforesaid facts and circumstances, even on an independent assessment of the contention advanced, this Court find no reason to grant an order of interim injunction in favour of the petitioner. For the reasons indicated above; this Court is not inclined to interfere with the impugned orders and, accordingly the civil revision stands dismissed. 7. Learned counsel for the petitioner states as per the instruction received by him that original suit is at the stage of settlement of issues. Learned Addl. Govt. Advocate states that he does not know whether or not a written statement has already been filed by the defendants. Yet the parties propose for expeditious disposal of the suit. 7. Learned counsel for the petitioner states as per the instruction received by him that original suit is at the stage of settlement of issues. Learned Addl. Govt. Advocate states that he does not know whether or not a written statement has already been filed by the defendants. Yet the parties propose for expeditious disposal of the suit. Considering the aforesaid submission, it is directed that if a written statement has not yet been filed, defendants shall file the same within a period of one month from today and, learned Addl: Govt. Advocate undertakes to intimate the same to the Collector, Balasore for necessary action. Learned Civil Judge (Senior Division) therefore, may do well to settle the issues after filing of the aforesaid written statement and to dispose of the suit in accordance with law, as far as practicable, by the end of August, 2002.