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2015 DIGILAW 354 (ORI)

Sankarsan Samantaray v. Jayanta Routray

2015-06-17

S.PANDA

body2015
JUDGMENT : S. Panda, J. This Civil Miscellaneous Petition has been filed by the petitioners challenging the judgment dated 21.2.2015 passed by the learned Addl. District Judge, Bhubaneswar in F.A.O. No. 18/58 of 2014/12 confirming the order dated 19.5.2012 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No. 419 of 2010 arising out of C.S. No. 1002 of 2010 rejecting an application filed under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. for temporary injunction. 2. The brief facts of the case are that the petitioners as plaintiffs filed C.S. No. 1002 of 2010 before the learned Civil Judge (Senior Division), Bhubaneswar for declaration of right, title, interest over the suit land, to declare the Registered Power of Attorney No. 435 dated 15.4.2009 executed by defendant no. 1 in favour of defendant no. 2 is illegal, to declare that the Registered Sale Deed No. 22257 dated 22.12.2009 executed in favour of defendant nos. 3 and 4 as illegal, void and inoperative and for permanent injunction. In the plaint it was pleaded that the father of the petitioners namely Kailash Chandra Samantaray had filed an application under Section 26(2) of the O.L.R. Act before the Revenue Officer, Bhubaneswar to declare him as 'raiyat' in respect of the suit land. The Revenue Officer, Bhubaneswar by order dated 30.9.1969 declared him as 'raiyat' on payment of compensation which would be paid in five installments. Thereafter O.L.R. Appeal No. 35 of 1969 was preferred before the S.D.O., Bhubaneswar which was dropped vide order dated 07.10.1971. The father of the petitioners was in cultivating possession over the suit land and after him the petitioners are in possession over the suit land. The predecessors and after them the petitioners have got right, title and interest over the suit land and the suit land is agricultural in nature. Defendant nos.1 and 2 being the successors of the landlord namely Narendra Kishore Dash have got no authority to alienate the suit land in favour of defendant nos.3 and 4. Defendant nos.1 and 2 illegally sold the suit land in favour of defendant nos.3 and 4 vide Registered Sale Deed No. 22257 dated 22.12.2009. 3. Opposite party nos.1 and 2 (defendant nos. 3 and 4) appeared in the suit and filed their written statement contending inter alia that the suit is barred by limitation and is undervalued. Defendant nos.1 and 2 illegally sold the suit land in favour of defendant nos.3 and 4 vide Registered Sale Deed No. 22257 dated 22.12.2009. 3. Opposite party nos.1 and 2 (defendant nos. 3 and 4) appeared in the suit and filed their written statement contending inter alia that the suit is barred by limitation and is undervalued. It was stated that the defendants are in possession over the suit property since their date of their purchase. It was further stated that if a person is declared as per the provisions of Section 26(2) of the O.L.R. Act he must have obtained the said Certificate from the landlord and also send the Certificate to the competent authority to maintain the Records of Right and also he must have to show the acceptance of the compensation by the landlord and if fails to do so then the tenant ceased to have right to continue in cultivation hereof w.e.f. the date of expiry of the year next following the date of issue of the Certificate under Section 29 of the said Act. The landlord got the right to enter upon the land on the very next day. However, neither the landlord nor the authority concerned issued any Certificate and also not accepted the rent as well as cess relating to the suit scheduled property. Therefore, the plaintiffs have no right, title, interest and possession of the family property including the suit schedule property. Defendant nos.1 and 2 became the absolute owner of the suit property and they have every right to do so for the interest of their family and the plaintiffs are stopped to claim any equity against the true owners of the property. However, defendant nos.1 and 2 were set ex parte. 4. Along with the plaint the plaintiffs also filed an application under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. for temporary injunction restraining the defendants from evicting the petitioners from the suit land, which was registered as I.A. No. 419 of 2010. Defendant nos.3 and 4 filed their objection to the said application taking a stand that there is no cause of action to file the application. They are in possession over the suit property from the date of their purchase which is within the knowledge of the plaintiffs and general public in the locality. Defendant nos.3 and 4 filed their objection to the said application taking a stand that there is no cause of action to file the application. They are in possession over the suit property from the date of their purchase which is within the knowledge of the plaintiffs and general public in the locality. The plaintiffs did not obtain the Certificate from the competent authority and they have no right, title and interest over the suit property. The court below after hearing the parties by order dated 19.5.2012 rejected the application with a finding that the dispute is between the landlord and the tenant under the O.L.R Act and as per Section 41 of the Specific Relief Act, 1963 injunction cannot be granted under Section 41(h) when equal efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 5. Being aggrieved the petitioners preferred F.A.O. No. 18/58 of 2014/12. The learned Addl. District Judge, Bhubaneswar by the impugned judgment confirmed the order of the trial court with a finding that the documents are showing prima facie in possession of the opposite parties over the suit land on the date of institution of the suit. 6. Learned counsel appearing for the petitioners submitted that the ancestors of the petitioners and after them the petitioners are in cultivating possession over the suit land, therefore, the finding of the lower appellate court that prima facie the opposite parties are in possession over the suit land is illegal. He further submitted that the opposite parties have not filed any document before the court below to the effect that the landlord has taken possession of the suit land from the petitioners in accordance with law. Hence the impugned judgment need be interfered with. 7. Learned counsel appearing for opposite party no. 1 however, support the impugned judgment and submitted that mere assertion of the plaintiffs to have acquired title by adverse possession by long continuous possession is not sufficient unless his possession becomes tortuous and wrongful by his disloyal act and it must be open and continuous and notorious so as to preclude all doubts as to the, character of his holding and want of knowledge on the part of the owner. He further submitted that though there is determination of compensation amount payable to the landlord, there is no pleading in the plaint as to when the compensation was deposited. He also submitted that until the certificate is issued in favour of the tenant, the right of the landlord over the land continues to be with him. The tenant does not hold the land free from all encumbrances. Hence the impugned judgment need not be interfered with. 8. Considering the rival submission of learned counsel for the parties and after going through the materials available on record, it appears that both the courts below have not taken into consideration the order dated 30.9.1969 passed by the Revenue Officer, Bhubaneswar in O.L.R. Case No. 552 of 1966-67. In the said case the father of the petitioners had filed an application under Section 26(2) of O.L.R. Act for declaration that he is the 'raiyat' in respect of the disputed plots for more than last 30 years on bhag basis and has paid rajbhag. The Revenue Officer recorded a finding that the landlord stays in Cuttack Town is a absentee landlord and the applicant is a bhag tenant on the date, the O.L.R. came into force. Accordingly, the Revenue Officer declared the applicant as 'raiyat', assessed the compensation and directed to pay the compensation in five installments. The said order was challenged by the landlord in O.L.R. Appeal No. 35 of 1969 before the Sub-Divisional Officer, Bhubaneswar. However, the said appeal was dropped by order dated 07.10.1971. Thereafter no document was produced by the present opposite parties that their vendor, the landlords in the aforesaid O.L.R. proceeding have taken possession from the 'raiyat' or any materials to show that they are in possession over the land. However, the opposite parties, who are the purchasers have purchased the property in the year 2009 from the landlord. The question regarding entitlement over the land and the possession over it as pleaded by the parties are to be considered in the suit itself. 9. Since there are no materials available on record regarding possession of the opposite parties as well as their vendor over the disputed properties and as the courts below have not considered the order passed by the O.L.R. authorities, the findings of the courts below is an error apparent on the face of the record and perverse. 9. Since there are no materials available on record regarding possession of the opposite parties as well as their vendor over the disputed properties and as the courts below have not considered the order passed by the O.L.R. authorities, the findings of the courts below is an error apparent on the face of the record and perverse. Accordingly, this Court while setting aside the impugned orders directs the parties to maintain status quo over the suit land till disposal of the suit. However, the learned Civil Judge (Senior Division), Bhubaneswar is directed to dispose of C.S. No. 1002 of 2010 in accordance with law, as expeditiously as possible. Parties are directed to cooperate before the court below for early disposal of the suit. Ordered accordingly.