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2015 DIGILAW 338 (ORI)

Kumari Sahu v. Sudhansu Bhusan Meher

2015-05-14

R.DASH

body2015
ORDER : The writ petitioners herein challenge the order dated 26.09.2012 passed by the learned Additional District Judge Bolangir in F.A.O. No.812 of 2012 confirming the order of injunction passed by the learned Civil Judge (Junior Division) Bolangir allowing the opposite party s prayer for interim injunction restraining the writ petitioners not to either come upon or create any disturbances over a portion of the suit land marked B in the sketch map annexed to the plaint. 2. The writ petitioners are the defendants and the opposite party is the plaintiff in Civil Suit No.17 of 2012 in the court of the learned Civil Judge (Junior Division) Bolangir. 3. The suit is for declaration of plaintiff s right and title over the entire suit land appertaining to Plot No.203374 measuring an area of Ac.0.058 of Mouza-Bijakhaman P.S.-Bolangir No.150 District-Bolangir with further prayer for eviction of the defendants from a portion of the suit land which is marked A in the sketch map and a decree for perpetual injunction restraining the defendants from creating any disturbance in peaceful possession and enjoyment over the rest part of the suit land marked B in the sketch. 4. Plaintiff-opposite party claims to have purchased the suit land on 26.12.1988 under a registered sale deed followed by delivery of possession. It is not disputed that the defendants-petitioners have got their land to the adjoining west of the suit land. It is alleged that in order to make construction of his dwelling house over the suit land when opposite party got the suit land demarcated on 20.02.2012 he came to know that the petitioners have encroached a portion of the suit land marked A in the sketch map and amalgamated the same with their land. It is further alleged that when the opposite party was proceeding with construction work over the rest part of the suit land which is marked B in the sketch map the petitioners created disturbance. Hence the suit. 5. It is further alleged that when the opposite party was proceeding with construction work over the rest part of the suit land which is marked B in the sketch map the petitioners created disturbance. Hence the suit. 5. Petitioners in their written statement have taken the stand that the opposite party s claim that he has been possessing the suit land from the date of his purchase is false that the opposite party had never possessed the suit land at any point of time that the suit land marked A has never been amalgamated by the petitioners with their purchased land that they have been in possession of their own purchased land since the date of their purchase that the petitioners purchased their land with dimension 57 feet x 70 feet from their vendor under registered sale deed dated 27.4.2004 who in turn had purchased the piece of land from one Purnabasi Sahu widow of Late Dhobai Sahu on 12.11.1997 that the plaint is hit under Order-7 Rule-3 of C.P.C. inasmuch as the suit land has not been properly described that since suit land marked A portion is a part of their purchased land and they have been in the possession thereof they are not liable to be evicted. 6. Though it is averred in the W.S. that the suit land is not properly described and that a portion of the suit land marked A has been in the possession of the petitioners it is nowhere pleaded that the petitioners are either in possession of the rest portion of the suit land marked B or that it is part of the land they purchased and got delivery of possession from their vendor. Learned trial court finding the opposite party to have got prima facie title in the suit land and balance of convenience in his favour and he would suffer irreparable injury if he is not permitted to enjoy the plaint schedule B portion of the suit land granted interim injunction. Learned trial court finding the opposite party to have got prima facie title in the suit land and balance of convenience in his favour and he would suffer irreparable injury if he is not permitted to enjoy the plaint schedule B portion of the suit land granted interim injunction. When that matter was challenged in F.A.O. No.812 of 2012 the learned lower appellate court having considered the pleadings of the parties observe that the actual dispute between the parties is in respect of an area measuring 57 feet x 3.5 feet which is said to be under forcible possession of the petitioners which is marked A in the sketch map with further observation that if at all there exists any boundary dispute the same can be sorted out either mutually by the parties or taking resort to law by way of deputation of a commissioner but for the reason that there is a boundary dispute a work going over the undisputed portion of the suit land cannot be stalled till determination of that dispute. In para-12 of their W.S. defendants have taken a clear stand that suit land marked A is a part of their purchased land and in the alternative they have perfected title thereover by adverse possession. Thus they have not laid any claim over Mark B portion of the suit land. 7. The petitioner challenges the impugned order contending that it is patently illegal and has occasioned in the failure of justice. In support of this contention it is submitted that the learned courts below failed to appreciate that unless boundary as well as the description of the suit land is clear there should not be an order of injunction. It is further submitted that since the suit property is not properly described and the description being insufficient for proper identification of the suit property the order of injunction would be inexecutable and it would cause gross prejudice to the petitioners. Therefore it is submitted it would be expedient in the interest of justice to quash the order dated 26.9.2012 passed by the learned Additional District Judge Bolangir as well as the order dated 23.7.2012 passed by the learned Civil Judge (Junior Division) vide Annexures-7 and 5 respectively. 8. Therefore it is submitted it would be expedient in the interest of justice to quash the order dated 26.9.2012 passed by the learned Additional District Judge Bolangir as well as the order dated 23.7.2012 passed by the learned Civil Judge (Junior Division) vide Annexures-7 and 5 respectively. 8. Learned counsel for the opposite party on the other hand submits that so far Mark B portion of the suit land is concerned the petitioners-defendants have not advanced any claim in it and the real dispute being confined to Mark A portion of the suit land the impugned orders are not liable to be interfered with. 9. Copy of the plaint as well as the written statement (Annexures-1 and 2) reflects that parties have purchased their respective land which situate adjoining to each other. Plaintiff purchased his land on 26.12.1988 and the defendants vendor had purchased the other piece of land on 12.11.1997. Order passed by the learned appellate court reveals that both have purchased their respective land from the same plot and the original recorded owner is one Dhobi Charan Sahu. While the plaintiff pleads that a stripe of his purchased land adjoining to the eastern side boundary line of defendants purchased land has been encroached and the dimension of that encroached portion is 3.5 feet x 57 feet the defendants deny to have encroached that portion of the suit land taking the specific stand that it is a part of their purchased land and there has been no encroachment as alleged. So far Mark B portion of the suit land is concerned the defendants have not advanced any claim. They are also not specific in their pleading as to whether the dimension of the disputed portion of the land is wider and/or larger than the dimension described in the sketch map annexed to the plaint. The plaintiff has described suit property by giving its plot number as well as its dimension. Therefore in view of the pleadings it cannot be said that the description of the suit land is insufficient or misleading. 10. Learned counsel for the petitioners submits that the sketch map annexed to the plaint is not according to the scale. The plaintiff has described suit property by giving its plot number as well as its dimension. Therefore in view of the pleadings it cannot be said that the description of the suit land is insufficient or misleading. 10. Learned counsel for the petitioners submits that the sketch map annexed to the plaint is not according to the scale. But then the description of the suit land given in the sketch map which forms part of the plaint appears to be sufficient to identify Mark B part of the suit land over which the petitioners-defendants have not advanced any claim. Therefore this Court does not find that failure of justice has been occasioned. The opposite party has got every right to enjoy his property over which the defendants have not advanced any claim. If he is asked to keep himself from enjoying it till final disposal of the lis merely on the ground that only a portion of his purchased land is in dispute then it would occasion failure of justice. 11. Having regards to the pleadings of the parties the findings recorded by the courts below and the submissions made by the learned counsels the writ petition is dismissed. Interim order dated 18.10.2012 passed in Misc. Case No.16419 of 2012 stands vacated. Petition dismissed.