Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 448 (ORI)

Asaram Keota v. Dasaratha Keota

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Plaintiffs are the appellants against a reversing judgment in a suit for permanent injunction. 2. One Raghunath Keota was the common ancestor of the parties. He had three sons, namely, Syama, Khadi and Manu. Syama died leaving behind three sons, namely, Sombaru, Sudri and Mukunda, who are dead. Sombaru died leaving behind Madhu. Sudri died leaving behind six sons, namely, Dasaratha, Budu, Manglasai, Ram, Singo and Lakhana, defendants 1 to 6. Dumer and Bali, defendants 7 and 11 are the sons of defendant no.1. Mukunda died issueless. Khadi had two sons, namely, Singri and Gaguru. They are dead. Singri died leaving behind Ram. Guguru died leaving behind plaintiffs 1 to 3. Manu died leaving behind two sons, Dhansal and Ratan. Parbati was the wife of Dhansal. They died issueless. Ratan died leaving behind his son, Rupdhar, defendant no.8, who is dead. Ratani and Anantha are the widow and son of Rupadhar. The case of the plaintiffs is that they are in possession of the suit land measuring Ac.8.12 dec.. Plaintiff no.1 initiated a proceeding under Section 145 Cr.P.C. in respect of the suit land in M.C. 34 of 1987. Prahallad Keota, Kamal Lochan Keota and Ratan Keota were second party members. By order dated 29.4.1978, the said proceeding was terminated in favour of the first party. On 20.11.78 the Revenue Inspector delivered possession to the first party. Since then plaintiff no.1 and his brothers are in possession of the suit land. The defendants trespassed upon the suit land and caused damage. A complaint case was filed against them. They were convicted and sentenced to pay a fine of Rs.30/- each. While matter stood thus, on 24.9.1984 they uprooted the paddy saplings. With this factual scenario, they instituted the suit seeking the relief mentioned supra. 3. Defendants 1 to 6 and 8 filed a written statement stating, inter alia, that plaintiffs are not in possession of the suit land. They are in possession of the suit land. They were not parties to the proceeding under Section 145 Cr.P.C. The R.O.R. has been recorded in their names. They denied the allegations of damage and waste. 4. On the inter se pleadings of the parties, learned trial court framed three issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court decreed the suit holding that the plaintiffs are in possession of the suit land. They denied the allegations of damage and waste. 4. On the inter se pleadings of the parties, learned trial court framed three issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court decreed the suit holding that the plaintiffs are in possession of the suit land. Felt aggrieved, the defendants filed appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of the learned Additional District Judge, Jeypore and renumbered as T.A.No.24/87 (22/87 of D.J.). Learned appellate court held that the plaintiffs have failed to establish that they are in possession of the suit land. Held so, it allowed the appeal. 5. The Second Appeal was admitted on the following substantial questions of law : “(1) Whether the lower appellate court was justified in not considering the Ext.2 in its proper perspective for coming to a conclusion with regard to the delivery of possession in favour of the plaintiff ? (2) Whether in the facts and circumstances of the case, the lower appellate court was justified in refusing the prayer for injunction on the ground and the property was a joint family property ?” 6. Heard Mr. P.V. Balakrishna, learned Advocate for the appellants and Mr. Sidhartha Mishra, learned Advocate along with Mr. L.N. Rayatsingh, learned Advocate for the respondents. 7. Mr. Balakrishna, learned Advocate for the appellants submitted that in a proceeding under Section 145 Cr.P.C. delivery of possession was made to the plaintiffs. The plaintiffs are in possession of the suit land. Learned appellate is not justified in upsetting the finding of the learned trial court and dismissing the suit. 8. Per contra, Mr. Mishra, learned Advocate for the respondents submitted that learned appellate court came to hold that the plaintiffs are not in possession of the suit land. Thus, they are not entitled for injunction. He further submitted that the evidence on record reveals that there was a partition of the suit property between the parties. 9. Admittedly, the parties are co-sharers. There is no pleading with regard to prior partition. Possession of one co-sharer is presumed to be possession of other co-sharers. Every co-sharer has interest in the land. A co-sharer cannot be injuncted from enjoying the joint family property. The substantial questions of law are answered accordingly. 10. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.