JUDGMENT

S.K. Mishra, J. – The petitioner being the plaintiff in C.S. No.80/2012 of the court of Civil Judge (Jr. Division), Kujang has assailed the judgment dated 5.3.2013 passed by learned Addl. District Judge, Jagatsinghpur in F.A.O. No.57 of 2012 setting aside the order dated 16.8.2012 passed by learned Civil Judge (Jr. Division), Kujang in I.A. No.96/2012.

2. The petitioner filed the suit for permanent injunction against the defendants from entering into the suit land and for restraining them from carrying on construction over the suit land or any portion thereon with other reliefs. The suit land pertains to Mutation Khata No.18/201, Plot No.452 measuring an area Ac 5.74 dec. out of Ac.11.50 dec of village Bijayachandrapur, Khata No.18 which were recorded in the name of Chakar Swain and others in the R.O.R of 1930 with the specific shares out of the total lands of an area of Ac.41.13 dec. The recorded tenant sold the same to Nityakishore Mohapatra and Gita Mohapatra and to another one Kusur Rama Guduppa in different sale deed since the year 1966-1969 to the extent of Ac.30.00 dec. The three purchasers sold the same to East Coast Breweries Ltd. vide Registered Sale Deed No.9487 dt.6.11.1969. The East Coast Breweries Ltd. filed a suit before the Civil Judge (Sr. Division), Jagatsingpur vide T.S. No.97/80 as the sale deed was without proper description of the land and the same was compromised between the parties to that suit and the Company became owner of the suit land. The suit land was mutated in Mutation Case No.210/1997. Since then the Company is paying rent and is in possession of the same. The defendant started construction over a portion of the suit land. Hence the plaintiff files a petition under Order 39, Rules 1 and 2 C.P.C. for restraining the defendant from carrying on construction over the suit land till disposal of the suit.

3. The defendant-opposite party filed their written statement denying the averments made in the interim application and challenging the maintainability of the same. It was contended that the vendor has not purchased the suit land. The sale transaction was fraudulent and nominal decree was obtained without adding the necessary parties, i.e. recorded tenant of the suit land. One Baishnab Ch. Panda is one of the recorded tenants of Sabik Khata No.18 having 2 Pahi interest in the entire land. He sold Ac.1.61 dec. to one Pramoda Kumar Pattnaik under registered sale deed no.954 dt.13.4.1998. Pramoda Pattnaik sold the said lands to different persons including one Sudhir Kumar Swain for an area Ac.0.21 dec. under registered sale deed No.208 dated 15.7.2006. Sudhir sold the land to the defendant under registered sale deed dated 8.7.2010 with a sketch map. The defendant-opposite party applied for mutation, which was allowed and mutation Khata No.18 was prepared in their name. The defendant-opposite party filed an application under Section 8(A) of the O.L.R. Act which was registered as O.L.R. Case No.445/2011. The further case of the defendant is that they are paying rent and is in possession of the case land. The defendant is carrying on construction over the case land and has constructed a substantial portion for residential purpose. The plaintiff-petitioner has filed the suit for recovery of possession. So the plaintiff is not in possession of the case land. The plaintiff has no manner of right, title, interest and possession over the same. So the person in possession cannot be restrained. With such averments the opposite party prayed that the interim application be dismissed.

4. After hearing parties, the learned Civil Judge (Jr. Division), Kujang passed an order directing the parties to maintain status quo. Against such an order the defendant filed an appeal in the court of the Addl. District Judge, Jagatsingpur which has been registered as F.A.O. No.57 of 2012. The learned appellate Judge after hearing parties has set aside the order passed by learned Civil Judge (Jr. Division), Kujang. Mainly h