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2018 DIGILAW 116 (ORI)

Jashoda Mahana v. Shibashankar Mahana

2018-01-25

A.K.RATH

body2018
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 daughter of the defendant no.2. She purchased the property along with one Harihar Sahu and Dasarathi Sahu by means of a registered sale deed dated 03.06.65 for a valid consideration. Possession was duly delivered to them. The property was partitioned amongst the three persons. The suit land fell to share of the plaintiff. When defendant no.1 started a construction, she instituted the suit seeking the relief mentioned supra. 3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants was that the description of the suit land is vague. The name of the plaintiff had been wrongly recorded in the M.S. R.O.R. The plaintiff had produced a sale deed dated 03.06.65 by making interpolation, whereafter her name was recorded. Even though the suit land had been recorded in the name of aforesaid persons, the suit land was allotted to defendant no.2. He was in possession of the same. He sold the land by means of a registered sale deed dated 10.11.78. In the draft consolidation land register, the name of defendant no.1 had been recorded. The said order attained finality. The plaintiff was not in possession of the suit land. The suit for permanent injunction was not maintainable. 4. On the inter se pleadings of the parties, the learned trial court struck eight issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that the consolidation authority has no power to grant injunction and as such the suit is hit under Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (“the O.C.H. and P.F.L. Act”). In view of the consolidation L.R. and M.S. R.O.R., the title remains in favour of the plaintiff. Held so, it decreed the suit. The defendants filed T.A. No. 30 of 1990 before the learned Civil Judge (Senior Division), Bargarh. Learned appellate court came to hold that the suit is hit under Sec. 51 of the O.C.H. and P.F.L. Act. The present suit is not a suit for injunction simplicitor, since it requires determination of right, title and interest of the parties. Held so, it allowed the appeal. 5. Learned appellate court came to hold that the suit is hit under Sec. 51 of the O.C.H. and P.F.L. Act. The present suit is not a suit for injunction simplicitor, since it requires determination of right, title and interest of the parties. Held so, it allowed the appeal. 5. This appeal was admitted on the following substantial question of law:-“Whether the lower appellate court was justified in coming to the conclusion that the suit was hit by Sec. 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ?” 6. Mr. Baibaswata Panigrahi, learned advocate on behalf of Mr. S.K. Padhi, learned Senior Advocate for the appellant submits that notwithstanding bar contained in Sec. 51 of the O.C.H. and P.F.L. Act, 1972, the suit for permanent injunction is maintainable. 7. Per contra, Mr. Jagannath Bhuyan, learned advocate on behalf of Mr. P.K. Routray, learned advocate for the respondent submits that since complicated questions of title are involved, suit for permanent injunction is not maintainable. He relies on a decision of this Court in Bholanath Bal and others v. Nandi Bal and others, 2018 (I) OLR 173. 8. In Duruju Mallik @ Duryodhan Swain Vrs. Krupasindhu Swain, 58 (1984) C.L.T.359 (F.B.) it was held:- “It is well known that a party cannot be non-suited when under the law he does not have any alternative forum for the redressal of his grievances. When his rights are of civil nature, the relief’s which flow from such rights and which he is entitled to get should be available from the Civil Court where the officer or authority has not been empowered to grant the same. In view of that has been discussed above, we agree with the view expressed by the Division Bench of this Court in the case reported in Rahas Bewa v. Kanduri Chanran Sutar and others (supra) that it becomes difficult to accept the submission that a suit for permanent injunction pending at common law shall stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act. Thus where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. Thus where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. In order to determine whether the suit for injunction simpliciter is maintainable or not, the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own.” (Emphasis laid)” 9. Taking a cue from Duruju Mallik @ Duryodhan Swain (supra), this Court in Bholanath Bal (supra) held:- “Notwithstanding with the bar contained in Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 the suit for permanent injunction is maintainable. But then where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction is not maintainable. 10. The plaintiff asserts that she along with one Harihar Sahu and Dasarathi Sahu purchased the suit land and other land on 03.06.65 by means of a registered sale deed. But then, the same has not been exhibited. The defendants assert that the suit schedule land was partitioned. The same was allotted in favour of the defendant no.2. Thereafter the defendant no.2 alienated the same in favour of defendant no.1 by means of a registered sale deed. While matter stood thus, the consolidation operation in the area, where the land falls, started. The land register was prepared in the name of the plaintiff along with others. Objection Case No. 2126/44 was filed before the Consolidation Officer. The Consolidation Officer directed to record the land in favour of defendant no.1. The said order attained finality. There is no material available on record as to whether any party has filed an appeal. In view of the fact that the suit schedule land has been recorded in the name of defendant no.1 in the Objection Case, the suit for permanent injunction is not maintainable. The substantial question of law is answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.