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2008 DIGILAW 604 (ORI)

GOBINDA CHANDRA ROUT v. MANAGING DIRECTOR, INDUSTRIAL INFRASTRUCTURE DEVL. CORPORATION, BBSR

2008-07-29

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This appeal has been filed against the order dated 4.1.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 9", of 2005 arising out of C.S. No. 9", of 2006 rejecting the application of the Appellants filed under Order 39, Rules 1 and 2 of the CPC on contest. 2. The brief facts of the case are as follows: The Appellants as Plaintiffs filed Civil Suit No. 9", of 2006 for declaration of their occupancy right over the suit property, preparation of a separate khata in their favour noting their occupancy status over the suit property with a prayer that a decree of permanent injunction be passed against Defendant No. 1 restraining him from coming upon the suit land and disturbing the peaceful possession of the Plaintiffs by making any construction thereon and declare that the registered lease deed No. 9", dated 23.1.1982 executed by Defendant No. 2 in favour of Defendant No. 1 is illegal and invalid and the said document does not create any right or interest with Defendant No. 1 in respect of the suit properties belonging to the Plaintiffs. The further case of the Plaintiffs was that originally the disputed property stood recorded in the name of Madhusudan Deb, the then Raja of Patia. In an auction sale, the said estate was purchased by the Raja of Kanika. The Plaintiffs' further case was that their forefathers were the settled Raiyats under the Raja of Patia in the year 1929. After change of landlord, their interest remained unaffected and they are possessing the suit land continuously openly without any disturbance from any quarter from the time of their forefathers. As such, they have acquired title over the suit land. The land was wrongly recorded in the name of Defendant No. l. Taking advantage of such wrong recording in the ROR, Defendants threatened to disturb the peaceful possession of the Petitioners on the suit land. Hence the suit. 3. In the suit they filed an application under Order 39, Rules 1 and 2 of the CPC for temporary injunction. Respondent No. 1 filed its objection stating therein that the forefathers of the Plaintiffs were not settled Raiyats under the Raja of Kanika and after the abolition of Zamidari the suit land vested with the State being free from all encumbrances. Respondent No. 1 filed its objection stating therein that the forefathers of the Plaintiffs were not settled Raiyats under the Raja of Kanika and after the abolition of Zamidari the suit land vested with the State being free from all encumbrances. In the two successive settlement operations, the suit land was recorded in the name of the Government of Orissa and the Government of Orissa transferred the same to IPICOL for Industrial Development and IPICOL had also transferred the suit land to the IDCO in the year 1982 for development of Industrial Estate which is known as Chandrasekharpur Industrial Estate. They further asserted that after the abolition of Zamidari neither Ekpadia was submitted in favour of the predecessor-in-interest of the Plaintiffs showing the suit land to be tenanted land nor has the tenant ledger been opened in the name of the forefathers' of the Petitioners. Hence the Plaintiffs have No. right, title and interest over the suit property and therefore their application was liable to be dismissed. 4. Opposite party No. 2-Defendant No. 2 filed an objection separately stating therein that the Plaintiffs have No. right, title, interest and possession over the suit land. The State of Orissa having the proprietary title over the suit land allotted the land in favour of Defendant No. 1 who is in possession of the suit land as a lessee. They reiterated the fact that in the two successive settlements the land was recorded in the name of the State of Orissa and Defendant No. 1 had already transferred the land in favour of IDCO for industrial development. They further asserted that the Kissam of the land was "Jhati Jungle" which is meant for the community having character of communal in nature and the ex-intermediary had not transferred the kissam of the land. The suit land situated in mouza Chandrasekharpur appertaining to 1931 Settlement Plot No. 44 measuring an area of Ac.5.30 decimals under Khata No. 9", was recorded as Anabadi. It corresponds to 1973 Settlement Plot No. 44 measuring an area of Ac.5.030 decimals under khata No. 9", The Kissam of the land has been recorded as "Unnata Jojona Jogya". The suit land further corresponds to Half Plot No. 44 measuring an area of Ac.5.30 decimals under khata No. 6l2. The Kissam of the land has been recorded as "Gharabari-2" and the name of Defendant No. 1 has been recorded in the ROR. The suit land further corresponds to Half Plot No. 44 measuring an area of Ac.5.30 decimals under khata No. 6l2. The Kissam of the land has been recorded as "Gharabari-2" and the name of Defendant No. 1 has been recorded in the ROR. 5. The court below on considering the materials available on records and submissions of the parties rejected the application of the Appellants-Plaintiffs on the ground that the Plaintiffs had No. prima facie case and the balance of convenience was in favour of the IDCO-Defendant No. 1 who had leased out portions of the suit land for small scale industries. The IDCO as well as the owner of the industry will suffer irreparable loss if ad interim injunction is given in favour of the Plaintiffs. Against the said order, the Appellants have filed the present appeal on 2.4.2007. In the appeal, on 19.6.2008 the Appellants have also filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. 6. The learned Counsel appearing for the Appellants submitted that the court below did not consider the case of the Appellants in its proper perspective. The Appellants claimed right of occupancy and in support of their right of occupancy they filed documents. The court below did not consider those documents and observed that No. iota of evidence was adduced by the Appellants to justify the claim that their forefathers were in possession of the suit land which is an error of record. They filed Ekpadia issued by the then Raja of Patia in favour of the forefathers of the Appellants and also filed a document which reveals that the ASO issued a receipt on 16.7.1969 for Rs. 2/-. They also stated that in Misc. Case No. 32 of 1955-56 the Anchala Adhikari acknowledged the possession of the predecessor-in-interest of the Appellants and directed to vacate the plot. They also filed a letter dated 1.8.2000 issued by the Joint Manager (C), IDCO, Bhubaneswar wherein he requested to produce the relevant records relating to Revenue Plot No. 65(P) of Village Chandrasekharpur at the earliest for taking further action in that respect. They also filed a letter dated 1.8.2000 issued by the Joint Manager (C), IDCO, Bhubaneswar wherein he requested to produce the relevant records relating to Revenue Plot No. 65(P) of Village Chandrasekharpur at the earliest for taking further action in that respect. They also filed the ROR along with the map where the plot No. 44 was shown as Jhati Jungle in the name of Raja of Patia and also the order passed by the ASO on 2.5.1983 wherein it has been shown that plot No. 44 was recorded in the name of IDCO, Bbubaneswar as recorded holder with the note of possession in respect of the present Appellants and the court below without taking into consideration all those documents, illegally rejected the injunction application. Therefore, this Court should interfere with the impugned order and set aside the same and grant the interim injunction to the Appellants-Petitioners and restrain the Respondents from making any construction over the disputed plot. 7. Learned Counsel for the Appellants submitted that they have already filed an application for deputation of a commissioner for local inspection and the learned Counsel for the opposite parties-Respondents have No. objection if the land is locally inspected. However, this Court feels that deputation of a commissioner for local inspection is not necessary in the present facts and circumstances of the case. 8. The learned Counsel appearing for the Respondents I and 2 submitted that after vesting of the estate, the land was recorded in the name of the State Government and the State Government leased out the land in favour of Defendant No. 1. In two successive settlements, the land was recorded in the name of the State Government and they are in possession of the property and in pursuance of the State Development Policy, they leased out the land for industrial development purpose. As the Appellants have No. prima facie case, they are not entitled to the relief of injunction, balance of convenience is also in favour of the Defendants and as they have already invested huge amounts by making scheme for industrial development which is for the public purposes, at this stage they should not be injuncted to proceed with the work and they will suffer irreparable loss if injunction will be granted in favour of the Appellants. Accordingly, it is submitted that the interim application as well as the appeal may be dismissed. 9. Accordingly, it is submitted that the interim application as well as the appeal may be dismissed. 9. M/s. JSS IT Solutions Pvt. Ltd. a Company registered under the provision of Companies Act having its Head Office at IDCO Towers, Bhubaneswar through its director filed a Misc Case which was registered as Misc. Case No. 9", of 2008, to be impleaded as a party to this appeal and as the Appellants and Respondents did not object to the same, by order dated 9.6.2008 the Company was impleaded as a party to this appeal. The learned Counsel appearing for the Company submitted that they had applied to the IDCO for grant of a piece of land and accordingly an area of Ac.1.620 decimals of land in respect of Revenue Plot No. 44, under Khata No. 9", in Chandrasekharpur Police Station was allotted on lease basis and a registered deed of lease dated 9.5.2008 was executed between IDCO and the Company for a consideration of Rs. 40,50,000.00 (Rupees forty lakhs and fifty thousand) apart from annual ground rent of Rs. 4365/- and as such they have already invested huge amount for establishment of IT, ITeS, Software Development & KPO Unit and on the basis of the said lease deed they took the delivery of possession from IDCO on 9.5.2008. After taking delivery of possession of the land on 9.5.2008, the Petitioner-Company has been continuing with such possession and enjoying the case land. They have stated that they will be highly prejudiced if at this stage injunction will be granted in favour of the Appellants as they have invested huge amount of money and are in possession of the property. 10. This Court perused the records and heard the submission of the learned Counsel for the parties. In this appeal, it is to be determined whether the Appellants-Petitioners have prima facie case and balance of convenience is in their favour and if injunction will not be granted, whether they will suffer irreparable loss and injury. After examining the records filed by the Appellants-Petitioners, it is found that they have filed a suit for declaration of their right, title and interest over the disputed property claiming occupancy right over the same. After examining the records filed by the Appellants-Petitioners, it is found that they have filed a suit for declaration of their right, title and interest over the disputed property claiming occupancy right over the same. They have not yet proved their title over the suit property and the document they have filed, i.e. the copy of the ROR, shows that the property belongs to the Raja of Patia and the Kissam of the land is Jhati jungle. After vesting of the estate, the status of the properties has been changed. The Appellants' status after vesting is also not clear. Admittedly, the documents show that the property belongs to former Raja of Patia which vested with the State Government and the land was recorded in the name of. the State Government free from all encumbrances and subsequent to the said vesting, in two successive settlements the name of the State Government was recorded in the ROR which prima facie shows that the title and possession was with the State Government. From the documents filed by the Appellants-Petitioners it appears that they have not been able to show their title and continuous possession over the property from the date of vesting till date as these documents are to be proved in the suit. Only they have produced the order of the ASO, Settlement which is of the year 1983 and how and under what circumstances the possession over the property was recorded in the name of the Plaintiffs is also not clear from the said documents. At best, it can be presumed that they are in possession of the property from the year 1983 and that too under what capacity is not clear. The said document does not create any title in favour of the Appellants. So far as the possession is concerned, admittedly after the vesting the State Government was in possession of the property. The Appellants' claim of possession if any, continued from their forefathers till today is to be tried in the suit. That question is to be decided in the suit itself as they have prayed for declaration of their right, title and interest in the suit land. Therefore, the Appellants have No. prima facie case. 11. While considering the application for grant of injunction the court has to consider the conduct of the parties because grant of injunction is an equitable relief. Therefore, the Appellants have No. prima facie case. 11. While considering the application for grant of injunction the court has to consider the conduct of the parties because grant of injunction is an equitable relief. A person, who kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is very valuable land. The court while dealing with such matter must take all endeavours to protect the interest of the parties and for the said purpose application of mind on the part of the court is imperative. The Appellants have not been able to show that they have a prima facie title over the property and they are in possession from the date of their forefathers till date. In between, the property has vested with the State Government free from all encumbrances. Thereafter, the Appellants have not taken any step and they have kept quiet for a long period i.e. from the date of vesting till date. In the suit they have to prove how they are dealing with the property from the date of the vesting till date. The Defendants are the title holder and they have utilized the said property for the benefits of the public and already invested the huge amounts for the development of the said area. Therefore, they will sustain irreparable injury if injunction will be granted in favour of the Appellants. The other aspect is that if Appellants will succeed in the suit they will be compensated for the land. Therefore, they will not suffer irreparable loss or injury. 12. Since the Plaintiffs have prayed for a declaration of right, title and interest over the suit land on the basis of their possessory right over the disputed land, it prima facie shows that the Plaintiffs have No. title; and have only possession over the suit land. The Defendants have title as the ROR stands in their names in two consecutive settlements. Hence the Plaintiffs cannot get the injunction in such a situation against the Defendants to protect their possession. 13. Therefore, this Court is not inclined to interfere with the impugned order dated 4.1.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 9", of 2005 arising out of C.S. No. 9", of 2006. Hence the Plaintiffs cannot get the injunction in such a situation against the Defendants to protect their possession. 13. Therefore, this Court is not inclined to interfere with the impugned order dated 4.1.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 9", of 2005 arising out of C.S. No. 9", of 2006. The First Appeal as well as Misc. Case No. 9", of 2008 is dismissed. Final Result : Dismissed