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2017 DIGILAW 1258 (ORI)

Bharat Pradhan v. Sadhu Charan Gauda

2017-11-06

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 01. This is a plaintiffs’ appeal against confirming judgment in a suit for permanent injunction. 02. The case of the plaintiffs is that the suit schedule land originally belonged to the father of the defendant. He got the land from the ex-ruler of Parikuda for rendering services. To press his legal necessity, he sold the same to the plaintiffs by means of a registered sale deed dated 25.6.1966 for valid consideration and thereafter delivered possession. As the defendant threatened them to dispossess, they instituted the suit seeking the reliefs mentioned supra. 03. The case of the defendant is that the suit land is the joint family property. The sale deed was not for legal necessity. Possession was not delivered. The plaintiff has not acquired any title over the same. 04. On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence. Learned trial court held that there is no specific description of the land and its identity and as such no effective title could be passed. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Civil Judge (Sr. Divn.), Puri and renumbered as T.A. No.11/77 of 94/92. The appeal was eventually dismissed. 05. The second appeal was admitted on the following substantial questions of law. “(i) Whether the interpretation of documents, viz., (Exts.1, 2, 4 and 5) in relation to the title and possession of the plaintiff by the courts below is legally acceptable ? (ii) Whether the plaintiff was entitled to the relief of permanent injunction when the defendant is not discharged the burden of proving the dis-possession of the plaintiff ?” 06. Heard Miss Soumya Mishra on behalf of Mr. S.N. Mishra, learned counsel for the appellants, Mr. Ansuman Bhuyan on behalf of Dr. Sujata Das, learned counsel for the respondent. 07. Miss Mishra, learned counsel for the appellants submitted that the suit land originally belonged to the father of the defendant. To press his legal necessity, he alienated the land to the plaintiffs and delivered possession. The plaintiffs were in possession of the suit property. The defendant had no right, title and interest over the suit land. Since the defendant had created disturbances in possession of the suit land, the plaintiffs instituted the suit. To press his legal necessity, he alienated the land to the plaintiffs and delivered possession. The plaintiffs were in possession of the suit property. The defendant had no right, title and interest over the suit land. Since the defendant had created disturbances in possession of the suit land, the plaintiffs instituted the suit. Both the courts below are not correct that the plaintiffs are not in possession of the suit property. 08. Per contra, Mr. Bhuyan, learned counsel for the respondents contended that both the courts concurrently held that plaintiffs are not in possession of the suit property. The suit has rightly dismissed. 09. Before proceeding further, it is apt to refer the decision of the apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033 . In paragraph 11 of the report, the apex Court held: “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. (11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. (11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. (11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. (11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.” 10. The plaintiffs assert that they had purchased an area of Ac.0.83 dec. appertaining to Khata No.78, Plot No.783 of mouza-Sana Anla, Dist.-Puri. The ROR, Ext.C, reveals that Plot No.783 of Khata No.78 is a big patch of land having an area of Ac.2.80 dec. On comparison of the sale deed and the ROR, learned lower appellate court held that neither in the sale deed nor in the plaint, there is any mention that the plaintiffs had purchased any specific portion thereof. Evidence adduced by the plaintiffs that they had purchased southern portion of the plot. Learned lower appellate court rightly held that the same is beyond pleading. Both the courts concurrently held that the plaintiffs were not in possession of the suit land. There is no perversity in the same. The description of the suit land is unspecific. The same is unidentifiable. Thus the suit for permanent injunction is not maintainable. 11. Resultantly, the appeal fails and is accordingly dismissed. No costs.