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2017 DIGILAW 1328 (ORI)

Kopuli Jutia v. Dibakar Das

2017-11-20

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. The defendants are the appellants against a confirming judgment. 2. The plaintiff-respondent instituted the suit for permanent injunction. The case of the plaintiff was that he purchased the suit land from one Karunakar Das by means of a registered sale deed dated 22.6.88 for a consideration of Rs. 5000/-. He is in possession of the same. The defendants, who have no semblance of right, title and interest over the same, created disturbances. 3. Defendant no.1 filed the written statement denying the assertions made in the plaint. The case of the defendant is that the suit house is the ancestral joint family property of him and his brothers. There was a partition between the co-sharers thirty years back. The house was allotted to him. K. Gouranga, a co-sharer was residing in another village. He was an opium addict. He was not in possession of the suit house. He executed a registered sale deed in favour of Karunakar Das without consideration. The sale deed is void and not acted upon. Defendant no.1 is in possession of the suit house. It was further pleaded that the suit house situates over a piece of Government land. The land has been classified as “Patita Gramakantha” in the Sarbasadharan Khata. Government is the paramount owner of the land. Defendants 2 and 3 supported the case of defendant no.1. 4. On the inter se pleadings of the parties, the learned trial court framed four issues. The learned trial court came to hold that the plaintiff has right, title, interest and possession over the suit land. Held so, it decreed the suit. The unsuccessful defendants filed T.A.No.7 of 1995 before the learned Civil Judge (Senior Division), Chatrapur, which was eventually dismissed. 5. The appeal was admitted on 15.3.2002 on the following substantial question of law : “Whether in a suit for injunction simplicitor, the court below is competent to decide and/or declare title of the parties in absence of prayer to that effect and without payment of court-fee ?” 6. Heard Mr. Bramhanada Tripathy, learned Advocate for the appellants and Mr. Nibas Chandra Mishra, learned Advocate for the respondent. 7. Mr. Tripathy, learned Advocate for the appellants submitted that complicated question of title is involved in the appeal. The suit for permanent injunction is not maintainable. 8. Per contra, Mr. Heard Mr. Bramhanada Tripathy, learned Advocate for the appellants and Mr. Nibas Chandra Mishra, learned Advocate for the respondent. 7. Mr. Tripathy, learned Advocate for the appellants submitted that complicated question of title is involved in the appeal. The suit for permanent injunction is not maintainable. 8. Per contra, Mr. Mishra, learned Advocate for the respondent submitted that the plaintiff is a bona fide purchaser of the suit land. He is residing in the house standing over the suit land. The defendants have no semblance of right, title and interest over the suit land. When the defendants created disturbances, the plaintiff instituted the suit for permanent injunction. There is no perversity in the findings of the courts below. The same should not be interfered with in a Second Appeal. 9. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs & Ors., AIR 2008 SC 2033 , the apex Court summarized the position in regard to suits for prohibitory injunction relating to immovable property. The apex Court in paragraph-17 of the report held as follows : “(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 10. On a cursory perusal of the R.O.R., Ext.B, it is evident that the same was published in the name of the State of Orissa. The kissam of land is “Patita Gramkantha”. The learned trial court came to hold that the plaintiff has right, title and interest over the suit land. The learned appellate court came to hold that the R.O.R. stands in the name of the Government in Sarbasadharan Khata. The kissam of the land is “Patita Gramkantha”. The plaintiff has not able to show the source of title. The name of the plaintiff does not find place in the R.O.R. No record was produced to give a complete picture. The learned appellate court came to hold that the R.O.R. stands in the name of the Government in Sarbasadharan Khata. The kissam of the land is “Patita Gramkantha”. The plaintiff has not able to show the source of title. The name of the plaintiff does not find place in the R.O.R. No record was produced to give a complete picture. Cursorily in the same paragraph, it held that “when the title regarding the disputed land is not proved beyond doubt, possessory title is good against all the world except the true owner” and “unless the plaintiff is evicted from the suit house in due process of law, he can maintain his possession.” On perusal of the pleadings, it is clear that complicated question of title is involved. The successive alienation of the Government land does not create any title. In view of the same, simple suit for permanent injunction is not maintainable. 11. In the result, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is dismissed. No costs.