Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1349 (ORI)

Santilata Nayak v. Nilamani Behera

2017-11-24

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This Civil Miscellaneous Petition involves rejection of an application under Order 39, Rule 7 of the Code of Civil Procedure involving Civil Suit No. 195 of 2016. 2. Short background involved in the case is that opposite parties as plaintiffs filed Civil Suit No. 195 of 2016 in the Court of the Civil Judge (Junior Division), Bhadrak for declaration of right, title, interest and confirmation of possession of the plaintiffs-opposite parties, for declaration that M.S. Khata No. 509 in respect of the Suit Plot No. 1592 as wrong and illegal further with consequential reliefs. During pendency of the suit, the plaintiff- opposite parties filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying therein to restrain the present petitioners from entering into the suit land, from raising any new construction or any house over the suit land, from demolishing any portion of the residential house and from changing the nature and character of the suit land and the application was registered as I.A. No. 133 of 2016. The present petitioners filing objection alleged inter-alia that the plaintiff-opposite parties never possessed the suit land as their land is far away from the suit land and in fact the residential house involved not only belonged to the petitioners wherein their family reside and the said land has been obtained by their ancestors in lease from the ex-landlord Gayadhar Mohapatra and the opposite parties have been able to fraudulently manage the records for the purpose by recording note of possession in their favour. Pending consideration of application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, the present petitioners-defendants filed an application under Order 39, Rule 7 of the Code of civil Procedure to depute a commissioner to submit a report on the following question: “The commissioner is to report about the existence of house, trees, fence and boundary wall over the suit land and the topography of the suit land along with its surroundings.” 3. This application was objected by the opposite parties-plaintiffs on the premises that for the dispute involved in the Interim Application under Order 39, Rule 7 of the Code of Civil Procedure as well as in the suit sending a commissioner at this stage in exercise of power under Order 39, Rule 7 of the code of Civil Procedure will be amounting to collection of evidence involving main suit and it is thus claimed that such collection of evidence at this stage of the matter is not permissible. Considering the rival contentions, the trial court observed that the suit being for declaration of right, title, interest and confirmation of possession with further declaration as indicated hereinabove being seriously disputed by the present petitioners pending consideration of injunction application and evidence from both the side involving application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, deputing a commissioner at this stage will be amounting to collection of evidence on behalf of the opposite parties therein and the petitioners herein. As a consequence, the trial court rejected the application under Order 39, Rule 7 of the Code of Civil Procedure. 4. Sri Gautam Misra, learned counsel appearing for the defendant-petitioners taking this Court to the observations in the impugned order as well as the claim made in the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure and the application under Order 39, Rule 7 of the Code of Civil Procedure contended that the trial court has failed in appreciating the issue involved therein and thus arrived in the wrong and illegal impugned order. Sri Misra, learned counsel further taking this Court to the provision under Order 39, Rule 7 of the Code of Civil Procedure submitted that obtaining a report under order 39, Rule 7 of the Code of Civil Procedure not only has no help in the trial proceeding but the same may rather reduce the time in deciding such interlocutory matters and the parties may not enter into evidence. Supporting his stand, Sri Misra, learned counsel also taken support of the decision of the Court reported in the cases of Commissioner of Income-tax, Bombay vs. Mahomedbhoy I.A. Rowji, AIR 1943 (30) Bom. 311, Amiya Bhusan Tripathy vs. Ahammad Ali, 1986 (2) OLR 330, Smt. Rajbir Kaur and Another vs. M/s. S. Chokosiri and Co. Supporting his stand, Sri Misra, learned counsel also taken support of the decision of the Court reported in the cases of Commissioner of Income-tax, Bombay vs. Mahomedbhoy I.A. Rowji, AIR 1943 (30) Bom. 311, Amiya Bhusan Tripathy vs. Ahammad Ali, 1986 (2) OLR 330, Smt. Rajbir Kaur and Another vs. M/s. S. Chokosiri and Co. AIR 1988 SC 1845 and in the case of Atanu Basak vs. Shiba Prasad Mukherjee, (2010) 2 Cal. LT 44 (HC) and taking this Court to the relevant paragraphs therein contended that for the catena of decisions holding obtaining of report in exercise of power under Order 39, Rule 7 of the Code of Civil Procedure does not amount to collection of evidence involving the suit, Sri Misra, accordingly prayed for setting aside of the impugned order and allowing the Civil Miscellaneous Petition thereby allowing the application under Order 39,Rule 7 of the Code of Civil Procedure. 5. Learned counsel for the opposite parties on the other hand taking this Court to the controversy involved therein submitted that the specific claim of the plaintiff that there is a claim regarding right, title and interest over the disputed property along with confirmation of possession over the disputed land for being seriously objected in the objection at the instance of the opposite parties, in their objection involving I.A. No. 133 of 2016 involving application under Order 39, Rules 1 and 2 of the Code of Civil Procedure and further for the serious objection to the claims made in the Interim Application by the plaintiff particularly with regard to possession of the disputed property and the defendants since making a claim on possession over the disputed property taking advantage of the wrong indications in the land record and are trying to construct a new pucca house over the same. Further for their threat to accomplish the house construction by hook or crook over the suit plot and with further attempt of dismantling the existing house of the plaintiffs being seriously objected by the petitioners-defendants in their objection to the I.A. No. 133 of 2016 specifically pleading that the claim of the plaintiffs to be accruing a right over the disputed property belonging to his ancestor not only false but the allegation of threatening and illegal construction are also false. The petitioner-defendants specifically claimed that the plaintiffs have no possession of the suit house and it is on the other hand the only residential house of the defendants stands over the suit land and the defendants along with their family members reside over the suit land being obtained by the ancestor of the defendants under lease from ex-Landlord. The petitioner-defendants have strongly disputed the possession of the plaintiffs over the suit land. It is under the specific objection indicated hereinabove, learned counsel for the opposite parties contended that asking a Commissioner to report about the existence of house, trees, fence and boundary wall over the suit land and the topography of the suit land along with its surrounding is not only beyond the scope of the claim in the interim application but such evidence also becomes immaterial for consideration of the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. 6. Considering the rival contention of the parties, this Court finds the plaintiffs-opposite parties filed the suit with the following pleadings. “2. That the aforesaid suit plot no. 1592 is a part of C.S. area A0.29 dec. in C.S. Plot No. 1292. The ancestral residential house of the plaintiffs are situated over M.S. suit plot no. 1592, where the family members of the plaintiffs are residing. Some portion of suit land is also being used as Bari land. Some valuable trees like coconut, Bela and other trees are existing. 3. That the area of C.S. Plot No. 1292 was A0.29 dec. Chintamani Behera, father of the plaintiffs had purchased an area 1st measuring A0.24 dec. out of said A0.29 dec. In occasion Chintamani Behera purchased A0.04 dec. out of A0.29 dec in Plot No. 1292 for value from Mayadhar Mohapatra S/o Adikanda Mohapatra of village-Baralapokhari vide R.S.D. No. 7914 dated 3.8.1957 and took delivery of possession. Said Mayadhar had acquired the same from the original land-lord. Similarly Chintamani Behera, father of plaintiffs again purchased A0.20 dec. out of said A0.29 dec. in C.S. Plot No. 1292 for value from Bichhanda Das S/o Nityananda Das of village-Baralapokhari vide R.S.D. No. 9713 dated 13.11.1957 and took delivery of possession. Said Bichhanda had acquired it from the landlord Gadadhar Mohapatra and others. Similarly Chintamani Behera, father of plaintiffs again purchased A0.20 dec. out of said A0.29 dec. in C.S. Plot No. 1292 for value from Bichhanda Das S/o Nityananda Das of village-Baralapokhari vide R.S.D. No. 9713 dated 13.11.1957 and took delivery of possession. Said Bichhanda had acquired it from the landlord Gadadhar Mohapatra and others. So Chintamani Behera father of plaintiffs owned the suit land with unity of title and unity of possession and after death of Chintamani the present plaintiffs are exclusively possessing the suit land. 5. That the suit M.S. Plot No. 1592 Area A0.09 dec. Kisam, Ghara bari with Basagruha which is a part of C.S. Plot No. 1292 has wrongly been recorded in the name of Nrusingha Nayak S/o Jagannath Nayak and Laxmi Nayak W/o Jagannath Nayak. Said Nrusingha and Laxmi have died. The defendants are the L.Rs. and successor-in-interest of Nrusingha Nayak and Laxmi Nayak. In remark column of M.S. Suit Plot No. 1592 forcible note of possession in favour of Chintamani Behera the father of plaintiffs has been recorded as because Chintamani Behera is the owner of M.S. Suit Plot No. 1529 which is part of M.S. Plot No. 1292. Due to such illegal and wrong record the defendants are claiming the said suit plot no. 1592. The plaintiffs used to request to the defendants to execute no claim deed in favour of plaintiffs in respect of suit land. They used say to wait for while. The defendants also had assured to execute it but instead of doing that all on a sudden on 16.5.2016 the defendants stored house building materials like sand, cheaps and iron rods to construct a new pucca building over suit plot. To the oppose made by the plaintiffs the defendants gave threat to take over the possession of suit land by applying force and arm. The defendants also gave threat to cut the coconut trees and demolish the thatched house of the plaintiffs which are situated over suit land where the family members of the plaintiffs used to reside. 6. That the defendants have no semblance of right, title, interest and possession over suit land in any manner. But taking the advantage of wrong recording of suit land vide M.S. Khata No. 509 the defendants are trying to commit mischief over suit land and take over the same to their possession. 6. That the defendants have no semblance of right, title, interest and possession over suit land in any manner. But taking the advantage of wrong recording of suit land vide M.S. Khata No. 509 the defendants are trying to commit mischief over suit land and take over the same to their possession. As such the plaintiffs have been compelled to file this suit for appropriate remedy.” 7. The suit also contained the following prayer: “That the plaintiffs therefore prays that:- (a) It be held and decreed that the plaintiffs have absolute right, title, interest over suit land and possession of the plaintiffs be confirmed over the same. (b) It be further held that the defendants have no right, title, interest and possession over suit land. (c) It be further held that the M.S. Khata No. 509 in respect of suit plot no. 1592 is wrong and illegal. (d) The defendants be permanently restrained from entering into suit land and interfering the possession of the plaintiffs over suit land. (e) The suit be decreed in favour of the plaintiffs with cost. (f) Any other relief may kindly be granted in favour of plaintiffs as the learned court deems fit, just, proper and equitable.” 8. Similarly, the plaintiffs-opposite parties filing the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, in paragraph-3 made the following pleading: “That one ancestral dwelling house of the petitioners/plaintiffs is existing over M.S. Suit Plot No. 1592, A0.09 dec. of Khata No. 509 which is a part of purchased area A0.24 dec. in C.S. Plot No. 1292. Since the suit M.S. Plot No. 1592 has wrongly been recorded in favour of Nrusingha Nayak the husband and father of O.Ps, the O.Ps are illegally claiming said Plot and now they are taking efforts to construct a new pucca house over the same and on 16.5.2016 the O.Ps have given threat to accomplish the house construction work by hook or crook over the suit plot. The O.Ps have also intended to dismantle some portion of pucca residential house of the petitioners situated over suit land. They have collected some house building materials like cheaps, sands, and bricks which they have stored it near the suit plot and they have arranged the masons and labourers to execute such work. If the O.Ps do this the petitioners shall be put to irreparable loss and injury.” 9. They have collected some house building materials like cheaps, sands, and bricks which they have stored it near the suit plot and they have arranged the masons and labourers to execute such work. If the O.Ps do this the petitioners shall be put to irreparable loss and injury.” 9. The application also contained the following prayer: “Hence prayed that the O.Ps may kindly be restrained from entering into the suit land, from raising any new construction or any house over suit land, from demolishing any portion of the residential house of the petitioners situated over suit land, from damaging trees situated over suit land, from digging earth over suit land and from changing the nature and character of the suit land by an order of ad-interim injunction till disposal of the Civil suit.” 10. The petitioners-defendants in their objection have the following pleadings: “3. That the averments of the petition are all false and denied by the O.Ps. It is false to say that the dwelling house of the petitioner/plaintiff stands over the suit land and that the suit land is part and parcel of the purchased land of the plaintiff ancestor and that the O.P. on 16.5.2016 threatening to illegally construct house over the suit land and to demolish the old house of the petitioner. 4. That in fact the petitioner not in possession of the suit land on the other hand the only residential house of the O.Ps stands over the suit land. The O.Ps along with their family resides over the suit land. The suit land was obtain by the ancestor of the O.Ps under lease from the ex-landlord Gayadhar Mohapatra. The said fact was duly enquired into during M.S. Operation under Tartib No. Una/91 and accordingly the land was recorded in favour of these O.Ps. As by then Jagannath Nayak was dead, the petitioner ancestor fraudulently manage to record note of possession in his name. In fact the note of possession is apparently wrong and illegal. The petitioners are never in possession of the suit land. Their land is far away from the suit land. One Rabindra Behera who is the agnatic relation of the petitioner has his land near the suit land. There is demarcation dispute between the O.Ps and Rabindra Behera. The said Rabindra Behera has set up the Petitioners to file this unnecessary suit and this petition basing on the wrong recording.” 11. Their land is far away from the suit land. One Rabindra Behera who is the agnatic relation of the petitioner has his land near the suit land. There is demarcation dispute between the O.Ps and Rabindra Behera. The said Rabindra Behera has set up the Petitioners to file this unnecessary suit and this petition basing on the wrong recording.” 11. Whereas the application under Order 39, Rule 7 of the Code of Civil Procedure at the instance of the defendants has the following pleadings: “Before making any interim arrangement with regard to the suit land under Order 39, Rules 1 and 2 of the Code of Civil Procedure, the present position and topography of the suit land is very much essential. Any order for preservation of the suit land can only be effective on placement of the present topography of the suit land and before the court otherwise it will led to multiplicity of litigation and unnecessary harassment of the parties. The defendants have following question for investigation of the Commissioner and for submission of report. The commissioner is to report about the existence of house, trees, fence and boundary wall over the suit land and the topography of the suit land along with its surroundings.” 12. For the pleadings in the plaint and the objection of the defendants through their objection to the Interim Application as well as the claim in the application under Order 39, Rule 7 of the Code of Civil Procedure, it clearly appears that the suit involves a declaration of right, title and interest involving particular property. The Interim Application under Order 39, Rules 1 and 2 involves restricting the defendants from doing in the particular manner indicated therein under the pretext of collection of materials, use of force and threat etc, as narrated in detailed therein. Looking to the claim in the Interim Application and the objection of the parties involving, this Court finds the question framed in the application under Order 39, Rule 7 of the Code of Civil procedure is not only wholly irrelevant for the purpose of injunction but will be an inquiry encroaching upon the disputes involved in the main suit before commencement of evidence. This Court therefore observes, particularly looking to the question framed in the application under Order 39, Rule 7 of the Code of Civil Procedure, entertainment of such prayer at this stage will be nothing else than collection of evidence prior to recording the evidence of the respective parties. Looking to the observation made in the impugned order, this Court finds there is no infirmity in the impugned order. This Court further observes that the question framed in the application under Order 39, Rule 7 of the Code of Civil Procedure not only has direct bearing on the trial of the suit and has no relevancy to the dispute involved in the Interim Application but also has a far reaching consequence involving the suit. Entertaining such application at this stage of the matter will be amounting to interfere in the original suit before trial. Now considering the question required to be enquired by the Commissioner, this Court finds there being no dispute regarding existence of the house, trees, fence and boundary wall over the suit land involving the injunction, such matters appear to be dealt in the trial of the suit and at present an attempt for appointment of Commissioner for report purpose appears to be premature. 13. Going through the citations placed by Sri Misra, this Court finds for the difference in the situation explained hereinabove, none of the citation has any application to the case at hand. 14. Under the circumstances and for the observations made hereinabove, this Court finds no error or infirmity in the impugned order leaving any scope for interfering in the same. 15. In the result, the Civil Miscellaneous Petition stands dismissed. No order as to cost.