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2016 DIGILAW 288 (ORI)

Chittaranjan Mohapatra v. Sab Miller India Ltd.

2016-04-12

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. The petitioners in this CMP assail the order dated 3.2.2016 passed in FAO No. 69 of 2015 (Annexure-6) wherein the learned District Judge, Jagatsinhgpur set aside the order dated 11.5.2015 passed by the learned Civil Judge (Senior Division), Kujang in I.A. No. 19 of 2015 arising out of C.S. No. 25 of 2015 (Annexure-5) allowing an application under Order 39 Rules 1 and 2 C.P.C. filed by the petitioners (plaintiffs in the suit) and directing the parties therein to maintain status quo in respect of the suit land till disposal of the suit. 2. Brief facts of the case relevant for proper adjudication of the CMP are as follows: The petitioners as plaintiffs filed C.S. No. 25 of 2015 seeking partition of the suit Schedule ‘A’ property i.e. an area of Ac.34.45 decimals appertaining to Sabik Plot No. 448 under Sabik Khata No. 42 of Mouza-Bijaychandrapur under Tirtol P.S. in the district of Jagatsinghpur and permanent injunction. It is their case that C.S. Khata No. 47 of village Bijaychandrapur was jointly recorded in the names of Madhu Moharatha and others under stitiban status with specification of their shares. Though there was no complete partitation between the recorded tenants, they were in possession of specific of parcels of land as per their convenience. Said Madhu Moharatha had one anna 8 pahi 4 Kranti share in the suit property which was subsequently devolved upon his grandson, Manguli and his two sons, namely, Padan and Gadhadhar as legal heirs. Out of their share, they sold an area of Ac.2.90 decimals out of Plot No. 448 in favour of Venkateswara Srinibas and Venkateswar Ranganath Swami vide RSD No. 5098 dated 30.7.1966. The present petitioners purchased small portions of the said land to a total extent of Ac. 0.85 decimals from Venkateswar Srinibas and Venkateswar Ranghanath Swami through different sale deeds. Subsequently the name of plaintiff no.3, namely, Debaballav Sahoo, was mutated in the R.O.R. in respect of the land he has purchased and he is residing over the same by constructing a residential house. The plaintiff no. 4 has also sought for mutation of his purchased land and has also filed a petition for conversion of the suit land to ‘homestead’. The plaintiff no. 4 has also sought for mutation of his purchased land and has also filed a petition for conversion of the suit land to ‘homestead’. It is contended in the plaint that the petitioners have been in possession of their respective portions of the land since the date of purchase, which is more fully described in the Schedule ‘B’ of the plaint, which is a part of Schedule ‘A’ land. Schedule ‘B’ property situates in the middle of Schedule ‘A’ land. When the plaintiff no. 3 started construction over his purchased land, the opposite party (defendant no. 1 in the suit) created disturbances claiming to have purchased a part of Plot No. 448 to an extent of Ac. 19.98 decimals by virtue of RSD No. 9487 dated 7.11.1969 and threatened the plaintiff no. 3 to forcibly take over possession of Schedule ‘B’ land. He also claimed to have obtained a compromise decree in T.S. No. 97 of 1980 on 24.4.1981 for an area of Ac. 19.98 decimals out of Plot No. 448 and mutated the same in Mutation Case No. 209 of 2007. The petitioners claimed that they have challenged the said mutation case in Mutation Appeal No. 6 of 2009 before the learned Sub-Collector, Jagatsinghpur and the order of mutation in favour of opposite party case has already been set aside vide order dated 15.2.2011 and they also claimed that the sale deed dated 7.11.1969 executed in favour of opposite party and compromise decree and mutation in favour of opposite party are out come of collusion, fraud and tainted by misrepresentation and therefore, the same are void and not binding on the petitioners. The petitioners (plaintiffs) approached the opposite party (defendant no. 1) for an amicable partition, but he did not agree. Thus, they filed a suit for partition. Along with the plaint, they filed I.A. No. 19 of 2015 under Order 39 Rules 1 and 2 C.P.C. to restrain the opposite party and his agent or person claiming under him from entering upon the suit land, carrying on construction and also to restrain him from alienating any part thereof till disposal of the suit. The opposite party (defendant no. The opposite party (defendant no. 1) filed his objection to the I.A. denying the averments made in the petition and also challenging the maintainability of the I.A. It is the case of opposite party that he is the owner in possession over an area of Ac.19.98 decimals from out of Plot No. 448, the total extent of which is Ac. 34.45 decimals including Schedule ‘B’ land, which situates in the middle of Plot No. 448. It is further contended that the opposite party acquired title over the land he has purchased on the strength of RSD No. 9487 dated 7.11.1969. The opposite party got a compromise decree in T.S. No. 97 of 1980 and accordingly, he got the land mutated in its name vide Mutation Case No. 209 of 1997. Accordingly, the R.O.R. and Map were corrected and the same was prepared in its name vide Holding No. 5703 under Plot No. 448/17 for an area of Ac. 19.98 decimals. The opposite party is paying rent after converting the same to be used for industrial purpose. Thus, he has right, title, interest and possession over the portion of the suit land he has purchased since the date of purchase. The petitioners have no manner of right, title, interest and possession over ‘B’ Schedule land and they are not entitled to any relief. 3. The learned trial court taking into consideration the pleadings as well as the contentions raised by the parties vide order dated 11.5.2015 disposed of the I.A. (Annexure-5) directing both the parties to maintain status quo over Schedule ‘B’ land till disposal of the suit. 4. The opposite party being aggrieved by the order dated 11.5.2015 passed by the learned trial court preferred FAO No. 69 of 2015 before the learned District Judge, Jagatsinghpur. The leaned District Judge vide his order dated 3.2.2016 (Annexure-6) allowed the appeal and thereby set aside the order dated 11.5.2015 passed by the learned trial court, which gives rise to the present CMP. 5. Mr. Goutam Misra, leaned counsel for the petitioners strenuously urged that the impugned order under Annexure-6 is an outcome of total non-application of judicial mind and there is apparent error on the face of the record. The learned District Judge misconstruing the contentions of the parties to be the findings of the learned trial court arrived at an erroneous conclusion. Mr. Goutam Misra, leaned counsel for the petitioners strenuously urged that the impugned order under Annexure-6 is an outcome of total non-application of judicial mind and there is apparent error on the face of the record. The learned District Judge misconstruing the contentions of the parties to be the findings of the learned trial court arrived at an erroneous conclusion. He drew my attention to Paragraphs-9, 10 and 11 of the impugned order and submitted that the same formed the basis of reaching at an erroneous conclusion by the learned appellate court. He further submitted that the learned trial court taking into consideration the respective cases of the parties came to a conclusion that there is a prima facie case in favour of the petitioners and the balance of convenience as well as irreparable loss are evenly poised in respect of both the parties to the I.A. Admittedly, the opposite party (defendant no. 1 in the suit) has purchased an area of Ac. 19.98 decimals from Sabik Plot No. 448 and the petitioners (plaintiffs in the suit) have purchased different parcels of the land through different sale deeds to the total extent of Ac. 0.85 decimals. Taking advantage of the misdescription of the suit land in the sale deeds, the opposite party which is a mighty Beer Manufacturing and Bottling Industry, is trying to oust the petitioners from their purchased land. Further, the plaintiff no. 3 has already mutated his name in respect of the land he has purchased and is residing thereon by constructing a residential house. 6. In course of argument, Mr. Mishra, learned counsel for the petitioners relied upon the decision in the case of M/s. Skol Breweries Ltd. -v- M/s. Sriram Engineering, 2013 (II) CLR 944. Incidentally, the said decision relates to adjacent plot of the suit land. He contended that a similar plea was also taken therein by the opposite party, who was the petitioner in the said writ petition and considering the plea taken by the parties, this Court had directed the parties therein to maintain status quo in respect of the suit land. Thus, he contended that the same analogy is applicable to the case at hand and prayed for setting aside the impugned order and to restore the order passed by the learned Civil Judge (Senior Division), Kujang to maintain status quo over the suit property. 7. Mr. Thus, he contended that the same analogy is applicable to the case at hand and prayed for setting aside the impugned order and to restore the order passed by the learned Civil Judge (Senior Division), Kujang to maintain status quo over the suit property. 7. Mr. Manoj Mishra, learned Senior Advocate appearing for the opposite party, on the other hand, submitted that there is no illegality in the impugned order under Annexure-6. Admittedly, the plaintiffs-petitioners have purchased different portions of the suit land through different sale deeds. They could not have joined together to maintain a suit for partition. The suit land has not been properly described in the plaint for which the suit is not maintainable in view of the Order 7 Rule 3 C.P.C. The description of the land is imaginary, unidentifiable and in such a case, an order of restraint will lead to further complicacy and law and order situation. The plaintiffs have suppressed the material facts. Since the plaintiffs have admitted in the plaint as well as in the I.A. that there are some mis-descriptions of land in the sale deeds, they could not have maintained a petition for injunction. The plaintiffs have also not challenged the compromise decree or the mutation in favour of opposite party. Though the petitioners have alleged fraud and misrepresentation against the opposite party, they have not given any particulars of the same as required under Order 6 Rule 4 C.P.C. He further submitted that in addition to the three ingredients for grant of temporary injunction, the Court has to see the conduct of the parties which is vital requirement for grant of temporary injunction. In furtherance of the submission, he contended that the petitioner no. 3, namely, Debaballav Sahu had filed C.S. No. 290 of 2010 in the court of learned Civil Judge (Senior Division), Kujang against the opposite party claiming declaration of his title in respect of the same suit schedule property. The matter came up before this Court in W.P.(C) No. 10158 of 2009, which was filed by the said opposite party, wherein this Court had granted an order of status quo to be maintained in respect of the land claimed by the petitioner no. 3. Further, the plaintiff-petitioner no. The matter came up before this Court in W.P.(C) No. 10158 of 2009, which was filed by the said opposite party, wherein this Court had granted an order of status quo to be maintained in respect of the land claimed by the petitioner no. 3. Further, the plaintiff-petitioner no. 6 had also suppressed the material facts with regard to C.S. No. 21 of 2007 filed by the present opposite party in which an order of status quo was passed in respect of ‘B Schedule property, which has also been confirmed in FAO No.28 of 2007 filed at the instance of the petitioner no. 6. Mr. Mishra, learned Senior Advocate also refuted the contention of the petitioners that there is apparent error on the face of the record and the learned District Judge has not applied its judicial mind while passing the impugned order. It is his submission that the opposite party which is a taken over Company of East Coast Breweries and Distilleries Ltd., is facing a lot of litigation in different Courts of law filed by the present petitioners or persons set up by them. In view of the litigation, the opposite party-company is not in a position to construct the boundary wall around the land recorded in its name for which the land grabbers are encroaching upon the land of opposite party and creating disturbance as well as nuisance for its smooth running. An order of status quo will certainly prejudice the opposite party inasmuch as the opposite party is in possession over the land he has purchased, which finds support by the civil court in the compromise decree dated 24.4.1981 in T.S. No. 97 of 1980 and subsequent order passed in Mutation Case No. 209 of 2007. The R.O.R. has also been published in its name by correcting the map and he is paying rent till date. Hence, the impugned order needs no interference and the CMP is liable to be dismissed. 8. In course of argument, learned counsel for both the parties in support of their case relied upon several case laws and produced documents in support of their case. Some of the documents produced were not part of the record either in I.A. No.19 of 2015 or FAO No. 69 of 2015 before the learned District Judge, Jagatsinghpur. 8. In course of argument, learned counsel for both the parties in support of their case relied upon several case laws and produced documents in support of their case. Some of the documents produced were not part of the record either in I.A. No.19 of 2015 or FAO No. 69 of 2015 before the learned District Judge, Jagatsinghpur. To test the veracity of the submissions of the learned counsel for the parties, this Court perused the materials on record, more particularly Annexures-5 and 6. At para-7 of the impugned order under Annexure-6, the learned District Judge has observed that the plaintiffs have filed the rough sketch map of the suit schedule land, but the dimension and details of plots of the schedule land have not been stated. Further, it was observed that the plaintiffs have admitted in their plaint that the suit plot is a huge plot and the portion over which the plaintiffs are claiming right, title and interest is comparatively smaller portion without having any details of the same. 9. Mr. Mishra, learned counsel for the petitioners submits that details of the description of plots have been given in Schedule ‘A’ and ‘B’ along with the sketch map attached to the plaint. Further, the said sale deeds, description of which has been given in Schedule ‘B’ of the plaint, contains the details of boundaries of plots purchased by the respective parties. The learned District Judge without scrutinizing the said documents came to the aforesaid erroneous finding which is not sustainable. 10. On perusal of the impugned order, it appears that the learned District Judge has not made any endeavour to make compendious scrutinization of Schedule ‘A’ and ‘B’ land, sketch map appended to the plaint with that of the description of the land stated to have been given in the sale deeds. Further, the learned District Judge at pra-9 of the impugned order, referring to para-5 of the order passed by the learned Civil Judge, observed that the learned Civil Judge has specifically recorded a finding that the suit land is imaginary with unspecific description of the suit Plot No. 448 which is a vast area comprising Ac. 34.45 decimals as admitted by the petitioners, and the opposite party is in possession over the land he has purchased vide RSD No. 9487 dated 7.11.1969. 34.45 decimals as admitted by the petitioners, and the opposite party is in possession over the land he has purchased vide RSD No. 9487 dated 7.11.1969. But, on perusal of para-5 of the order passed by the learned trial court (Annexure-5), it appears that those are contentions of the parties and not the findings of the learned trial court. It also appears that the learned District Judge misconstruing the arguments of the parties before the learned trial court to be its finding came to a conclusion that the opposite party is in possession of the suit land. 11. In view of the discussions made above, I find that there are errors apparent on the face of the record. The materials on record needs re-appreciation with regard to the identity vis-à-vis the possession of the parties over the suit land. Moreover, in course of argument, it is brought to the notice of the Court that order of status quo has been directed to be maintained in respect of adjacent land and also part of the suit land till disposal of the suit. The said fact has also not been taken into consideration by the learned District Judge. In that view of the matter, the impugned order under Annexure-6 is set aside and the matter is remitted back to the learned District Judge, Jagatsinghpur to hear the appeal afresh by giving opportunity to the parties to put-forth their case. The CMP is accordingly allowed.