Basanta Kumari Panigrahi @ Basanti v. Head Master, M. E. School
2018-01-25
A.K.RATH
body2018
DigiLaw.ai
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against a reversing judgment in a suit for permanent injunction. 2. The case of the plaintiff is that she is the owner in possession of the suit land. Her residential house stands over the same. The defendant has no semblance of right, title and interest over the suit land. The defendant has encroached upon an area of 0.090 hectare of land by putting a temporary green fence. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant is that the suit land has been recorded in the name of the defendant. The same is used as play ground. A fence has been erected in the year 1962. The defendant is in possession of the suit land. The husband of the plaintiff manipulated the execution of a registered sale deed and managed to get the suit land recorded in favour of the plaintiff. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiff has right, title and interest over the suit land. The defendant has encroached upon the suit land. Held so, it decreed the suit. The defendant filed T.A. No. 03 of 1986 before the learned Subordinate Judge, Parlakhemundi. Learned appellate court held that the plaintiff has not made out a case that the defendant has encroached upon the suit land. Held so, it allowed the appeal. 5. This appeal was admitted on 17.11.1988 on the following substantial question of law:- “The learned lower appellate court having confirmed the finding of the learned trial court that the plaintiff has been the owner in possession of the suit property, the suit for permanent prohibitory injunction has been decreed irrespective of the fact that the lower appellate court disagreed with the finding of the learned trial court that there has been no encroachment by the defendant ?” 6. Heard Mr. P.C. Kar, learned counsel for the appellant and Mr. Swayambu Mishra, learned Additional Standing Counsel for the respondent. 7. Mr. Kar, learned, learned counsel for the appellant argues with vehemence that the plaintiff is the owner in possession of the suit land. The defendant has no semblance of right, title and interest over the suit land.
Heard Mr. P.C. Kar, learned counsel for the appellant and Mr. Swayambu Mishra, learned Additional Standing Counsel for the respondent. 7. Mr. Kar, learned, learned counsel for the appellant argues with vehemence that the plaintiff is the owner in possession of the suit land. The defendant has no semblance of right, title and interest over the suit land. The defendant has encroached upon an area of 0.090 hectare of land by putting a temporary green fence. The learned trial court held that the plaintiff has title over the suit land. But then, the learned appellate court reversed the finding of the learned trial court that the defendant has not encroached upon any portion of the suit land on untenable and unsupportable grounds. 8. Learned Additional Standing Counsel submits that the suit land was not identifiable. The suit for permanent injunction is not maintainable. 9. Order 7 Rule 3 C.P.C. postulates that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 10. In the schedule of the plaint, the suit land has been described as under:- “Schedule Village Gumma Khata No. 188 Plot No. 731/1183 Extent 0.255 hectare” The plaintiff asserts that the defendant has encroached upon an area of 0.090 hectare of land. The suit land is a big plot. There is neither any pleading nor evidence on record that from which site of the suit plot, the defendant has encroached upon an area of 0.090 hectare of land. The alleged encroachment has not been properly described by giving boundary. The suit land is not identifiable. Thus the suit for permanent injunction is not maintainable. The substantial question of law is answered accordingly. 11. In the result, the appeal fails and is dismissed. Consequently, the suit is dismissed. There shall be no order as to costs.