Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1459 (ORI)

Jyotiprava Das v. Nityananda Swain

2017-12-15

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This is a plaintiff’s appeal against reversing judgment. The suit was for permanent injunction. 2. The case of the plaintiff was that the suit land originally belonged to one Kailash Chandra Mishra. In the year 1979 he sold the same to the plaintiff. Since then the plaintiff is in possession of the same. He has constructed a house over it. When the defendants created disturbances, she filed the suit seeking the relief mentioned supra. 3. The defendants filed written statement denying the assertions made in the plaint. It was pleaded that the suit land was under the possession of Uma Musmat. After her, they were in possession of the suit land. Though the suit land was sold by Kulamani to Kailash Chandra Mishra and later to the plaintiff, none of them was in possession of the suit land. They have perfected title by way of adverse possession and the suit is not maintainable. 4. Stemming on the pleadings of the parties, the learned trial court framed four issues. Learned trial court came to hold that plaintiff is the owner of the suit land. Held so, it decreed the suit. The defendants appealed before the learned Additional District Judge, Angul in T.A.No.15 of 1994, which was allowed. Hence, the Second Appeal. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.1, 2 & 3 of the appeal memo: “1. Whether a suit for permanent injunction can be dismissed when the plaintiff’s right, title, interest and possession was established? 2. Whether a suit for permanent injunction basing upon title of the plaintiff can be dismissed merely because the defendants have disputed the plaintiff’s title when the court came to a conclusion that such dispute is baseless ? 3. In every suit for injunction simplicitor whether the plaintiff is bound to seek a relief of declaration of his title merely because the defendants have disputed his title on baseless grounds ?” 6. Heard Mr.B.N.Bhuyan, learned Advocate and Ms.Supriya Patra, learned Advocate for the appellant. None appeared for the respondents. 7. Mr.Bhuyan, learned Advocate for the appellant submits that Kailash Chandra Mishra was the owner of the suit property. He sold the same to the plaintiff by means of a registered sale deed. Heard Mr.B.N.Bhuyan, learned Advocate and Ms.Supriya Patra, learned Advocate for the appellant. None appeared for the respondents. 7. Mr.Bhuyan, learned Advocate for the appellant submits that Kailash Chandra Mishra was the owner of the suit property. He sold the same to the plaintiff by means of a registered sale deed. On a threadbare analysis of the evidence and pleadings, the learned trial court held that the plaintiff has right, title and interest over the suit land. The learned appellate court also came to a finding that genuineness of the sale deed on the title of the vendor of the plaintiff is not in question. However, the learned appellate court committed a manifest illegality and impropriety in holding that since the defendants challenged the title of the plaintiff, the suit for permanent injunction is not maintainable. 8. In Anathula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs & Ors, AIR 2008 SC 2033 , the apex held that 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. 9. There is no dispute that Kailash Chandra Mishra was the owner of the suit property. He sold the same to the plaintiff by means of a registered sale deed. The sale deed is not in dispute. In fact, the appellate court came to hold that the title of the plaintiff is in dispute. It further held that P.Ws 1, 2 and 3 deposed that the land was in possession of the plaintiff. Evidence of the plaintiff about possession appears to be more reasonable than the evidence of defendants. Having held so, it abruptly came to a conclusion that since the defendants have challenged the title of the plaintiff from the very beginning and the plaintiff had not sought for declaration or confirmation of title, the suit is not maintainable. The judgment suffers from internal inconsistencies. The substantial questions of law are answered accordingly. 10. Resultantly, the judgment and decree of the learned appellate court is set aside. The Second Appeal is allowed. The judgment suffers from internal inconsistencies. The substantial questions of law are answered accordingly. 10. Resultantly, the judgment and decree of the learned appellate court is set aside. The Second Appeal is allowed. Consequently, the suit is decreed. There shall be no order as to costs.