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IN THE HIGH COURT OF ORISSA
Sanju Panda, J.
GOBINDA CHANDRA ROUT AND OTHERS - APPELLANT
Versus
MANAGING DIRECTOR, INDUSTRIAL INFRASTRUCTURE DEVL. CORPORATION, BBSR AND OTHERS - RESPONDENT
FAO No. 9 of 2007
Decided On : 29-07-2008
Land Dispute - Civil Procedure Code - Order 39, Rules 1 and 2 - [Order 39, Rules 1 and 2 of the CPC] - The court discussed the application of Order 39, Rules 1 and 2 of the CPC in the context of a land dispute. The key legal provisions considered were related to the prima facie case, balance of convenience, and irreparable loss, influencing the court's decision to dismiss the appeal.
Fact of the Case:
The Plaintiffs filed a suit for declaration of occupancy right over a disputed property and sought a permanent injunction against the Defendants. The Defendants contested the claim, asserting that the Plaintiffs had no right, title, or interest over the property. The court below rejected the Plaintiffs' application for temporary injunction, leading to the present appeal.
Finding of the Court:
The court found that the Plaintiffs failed to establish a prima facie case for their occupancy right over the disputed property. It noted that the documents provided by the Plaintiffs did not prove their continuous possession and title over the property. The court also considered the conduct of the parties and the public interest in the industrial development of the area, leading to the dismissal of the appeal.
Issues: The key issues revolved around the Plaintiffs' claim of occupancy right, the Defendants' title over the property, and the equitable relief of injunction under Order 39, Rules 1 and 2 of the CPC.
Ratio Decidendi: The court's decision was based on the lack of prima facie evidence of the Plaintiffs' title and continuous possession over the property, the conduct of the parties, and the public interest in industrial development. It emphasized the need to protect the interests of all parties and the absence of irreparable loss or injury to the Plaintiffs if the injunction was not granted.
Final Decision: The First Appeal and the Misc. Case were dismissed, upholding the lower court's decision to reject the Plaintiffs' application for temporary injunction.
JUDGMENT :
Sanju Panda, J. - This appeal has been filed against the order dated 4.1.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 9", of 2005 arising out of C.S. No. 9", of 2006 rejecting the application of the Appellants filed under Order 39, Rules 1 and 2 of the CPC on contest.
2. The brief facts of the case are as follows:
The Appellants as Plaintiffs filed Civil Suit No. 9", of 2006 for declaration of their occupancy right over the suit property, preparation of a separate khata in their favour noting their occupancy status over the suit property with a prayer that a decree of permanent injunction be passed against Defendant No. 1 restraining him from coming upon the suit land and disturbing the peaceful possession of the Plaintiffs by making any construction thereon and declare that the registered lease deed No. 9", dated 23.1.1982 executed by Defendant No. 2 in favour of Defendant No. 1 is illegal and invalid and the said document does not create any right or interest with Defendant No. 1 in respect of the suit properties belonging to the Plaintiffs. The further case of the Plaintiffs was that originally the disputed property stood recorded in the name of Madhusudan Deb, the then Raja of Patia. In an auction sale, the said estate was purchased by the Raja of Kanika. The Plaintiffs' further case was that their forefathers were the settled Raiyats under the Raja of Patia in the year 1929. After change of landlord, their interest remained unaffected and they are possessing the suit land continuously openly without any disturbance from any quarter from the time of their forefathers. As such, they have acquired title over the suit land. The land was wrongly recorded in the name of Defendant No. l. Taking advantage of such wrong recording in the ROR, Defendants threatened to disturb the peaceful possession of the Petitioners on the suit land. Hence the suit.
3. In the suit they filed an application under Order 39, Rules 1 and 2 of the CPC for temporary injunction. Respondent No. 1 filed its objection stating therein that the forefathers of the Plaintiffs were not settled Raiyats under the Raja of Kanika and after the abolition of Zamidari the suit land vested with the State being free from all encumbrances. In the two successive settlement operations, the suit land was recorded in the name of the Government of Orissa and the Government of Orissa transferred the same to IPICOL for Industrial Development and IPICOL had also transferred the suit land to the IDCO in the year 1982 for development of Industrial Estate which is known as Chandrasekharpur Industrial Estate. They further asserted that after the abolition of Zamidari neither Ekpadia was submitted in favour of the predecessor-in-interest of the Plaintiffs showing the suit land to be tenanted land nor has the tenant ledger been opened in the name of the forefathers' of the Petitioners. Hence the Plaintiffs have No. right, title and interest over the suit property and therefore their application was liable to be dismissed.
4. Opposite party No. 2-Defendant No. 2 filed an objection separately stating therein that the Plaintiffs have No. right, title, interest and possession over the suit land. The State of Orissa having the proprietary title over the suit land allotted the land in favour of Defendant No. 1 who is in possession of the suit land as a lessee. They reiterated the fact that in the two successive settlements the land was recorded in the name of the State of Orissa and Defendant No. 1 had already transferred the land in favour of IDCO for industrial development. They further asserted that the Kissam of the land was "Jhati Jungle" which is meant for the community having character of communal in nature and the ex-intermediary had not transferred the kissam of the land. The suit land situated in mouza Chandrasekharpur appertaining to 1931 Settlement Plot No. 44 measuring an area of Ac.5.30 decimals under Khata No. 9", was r
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