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2002 DIGILAW 175 (ORI)

MADAN JENA v. SARASWATI JENA (DEAD) BY L. RS.

2002-03-20

P.K.TRIPATHY

body2002
P. K. TRIPATHY, J. ( 1 ) THIS Second Appeal is against the concurrent judgments of the Courts below, i. e. , Munsif, Bhubaneswar in O. S. No. 31 of 1981 and Additional District Judge, Bhubaneswar in Title Appeal No. 5/5 of 1983/82 granting decree both of mandatory and perpetual injunction on the basis of the prayer made by the plaintiff in her suit. Admittedly, the defendants 1 and 3 are the co-owners of plaintiffs and therefore, after hearing the appellants the substantial question of law involved in the appeal was framed as follows :- whether a house constructed by a co-sharer on a homestead which is joint would be sufficient for relief of permanent injunction against another co-sharer who disturbs the possession of the plaintiff-co-sharer? ( 2 ) LATE Kshetrabasi Jena is a co-owner with the defendants and all of them are agnets. Plaintiff No. 1 is the widow and the other plaintiffs are the children of late Kshetrabasi and plaintiff No. 1. The plot under Khata No. 294 which includes plot No. 495, i. e. , the suit land, was acquired jointly by the parties and others and recorded as such in the settlement. These are the facts which are not disputed in the suit as per the pleadings of the parties. It is also not disputed that the purchasers including the co-owners are possessing separate patches from such acquired land and each of them have constructed residential structure and a common passage has been left to negotiate with the village road. This assertion in the plaint as has been noted in the impugned judgment, was proved through the admission of the defendants in course of adducing evidence. ( 3 ) ACCORDING to the plaintiffs who are the respondents in this second appeal, a portion of the plot from Plot No. 495 which was under possession of Late Kshetrabasi Jena was without a front room being half constructed before his death. Plaintiff No. 1 after being a widow become a helpless woman. She sought the assistance of the defendants and completed that front room by putting thathed roof and used that as a front/passage room. Plaintiff No. 1 after being a widow become a helpless woman. She sought the assistance of the defendants and completed that front room by putting thathed roof and used that as a front/passage room. As she did not accede to the illegal demands of the defendant No. 2 to allow him to use that room, the defendants conjointly tried to harass her and in furtherance thereof they put a lock on the entrance of the said passage room putting her into inconvenience for negotiating with the village road through that passage room. As alleged by her, she put a ladder on the backside of her house and scaling over the wall that way and through the premises of adjoining neighbour to the backside, namely Ram Jena, she and her children could manage to negotiate with the public road. That necessitated her to file the suit claiming for mandatory injunction with direction to the defendants to remove the lock from the entrance i. e. , the passage room and perpetual injunction for not interfering with her right to use that entrance room as a passage to her house. Though defendants 1 and 2 filed their joint written statement and defendant No. 3 filed a separate written statement but except advancing the plea of denial to the averments in the plaint, no specific case was pleaded by any of them in support of their defence while disowning the claim of the plaintiffs. ( 4 ) THE trial Court framed the following issues :-1. Is the suit maintainable? 2. Had the plaintiffs cause of action to file the suit? 3. Are the plaintiffs in exclusive possession over the suit house and have they got right of passage over the suit passage? 4. Are the plaintiffs entitled for the relief of permanent injunction to restrain the defendants to interfere with their right to use the residence over the suit plot and the suit passage and are the plaintiffs entitled for the relief of mandatory injunction to direct the defendants to remove the lock from their residence standing over the suit plot. 5. To what other relief the plaintiffs are entitled for? answering them all in favour of the plaintiffs, learned Munsif granted the decree for the relief of injunction in their favour as per the judgment and decree dated 9-12-1981. Defendants challenged that in the appeal before the Court below and learned Addl. 5. To what other relief the plaintiffs are entitled for? answering them all in favour of the plaintiffs, learned Munsif granted the decree for the relief of injunction in their favour as per the judgment and decree dated 9-12-1981. Defendants challenged that in the appeal before the Court below and learned Addl. District Judge, Bhubaneswar, vide the impugned judgment and decree dated 20-4-1985 uphold the finding and the conclusion recorded by the trial Court even after re-assessment of evidence and accordingly dismissed the appeal. Though the findings are solely based on facts to grant the relief in favour of the plaintiffs, in course of argument learned counsel for the appellants raised the legal issue as formulated and quoted above, and in support of that he relies on the case of Debaki Gouduni and others v. Bhagavati Goudo and others, 1996 AIHC 490. In that decision the claim of the plaintiff for exclusive possession of a purchased piece of agricultural land in exclusion to his sister who was the co-purchaser/co-owner was taken up for consideration by this Court. That sister had died leaving behind other heirs to succeed to her interest. Thus while not approving a decree for permanent injunction for exclusive possession by the plaintiff, this Court held that:-8. xxx xxx So I hold that in the case of agricultural land like the suit land, one co-owner should not be allowed to the relief of permanent injunction against his co-owners even if he is in exclusive possession of that land for a very long time. His ultimate remedy lies in filing a suit for partition to get his share. I am fortified in my view by a decision of the Madras High Court in Alamelu Achi v. Ponniah, AIR 1962 Mad 149 . " ( 5 ) KEEPING in view the facts involved in this case and the prayer advanced by the plaintiffs, it can be safely said that the above quoted ratio is not applicable to the present case. All that the plaintiffs/respondents have intended is a right to use the passage by utilising that passage room to negotiate into their house on the basis of their prior possession from the days of Kshetrabasi. All that the plaintiffs/respondents have intended is a right to use the passage by utilising that passage room to negotiate into their house on the basis of their prior possession from the days of Kshetrabasi. Such a right to possess by Kshetrabasi and his family members having been admitted in their evidence by the defendants that add to the strength of the claim advanced by the plaintiffs and proved through her evidence. Under such circumstance, it is a case where the relief of mandatory and perpetual injunction which were respectively granted in favour of the plaintiffs cannot be regarded as illegal or contrary to the provision in Sections 38 and 39 of the Specific Relief Act, 1963. Under such circumstance, this Court finds no reason to interfere with the impugned judgment and decree. Accordingly the Second Appeal stands dismissed. Keeping in view the aforesaid facts and results, parties are directed to bear their respective costs of litigation allthroughout. Hearing fee is assessed at contested scale. Appeal dismissed.