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2013 Supreme(Ori) 424
IN THE HIGH COURT OF ORISSA
S.K. Mishra, J.
KISHORE CH. BEHURA - APPELLANT
Versus
AJAY KU. BEHURA - RESPONDENT
Writ Petition (C) No. 13859 of 2013
Decided On : 16-09-2013
Important Points
Subject
Civil Law - Property Law
Headnote
Injunction - Partition Suit - OLR Act, Section 8(A) - Khirod Prasad Routray Vrs. Smt. Satyabhama Routray and others; 1986(II) OLR (NOC) 22 - Graftek Pvt. Ltd. and Others Vs. Shri Lord Lingaraj Mahaprabhu - Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass - Saraswati Barik and others Vrs. Rama Chandra Rout and others; 1988 (II) OLR-23 - Narayan Bisoi and Another Vs. Raghunath Bisoi - Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others - ECE Industries Limited Vs. S.P. Real Estate Developers P. Ltd. and Another
Fact of the Case:
The plaintiff filed a suit for partition and perpetual injunction against the defendants, claiming joint ownership of the suit land. The defendants objected, claiming ownership and citing OLR Act, Section 8(A) as well as their construction activities on the land.
Finding of the Court:
The trial court directed both parties to maintain status quo over the suit land. The District Judge allowed the defendant to cast the roof of a half-constructed house, with conditions, based on the balance of convenience and an undertaking given by the defendant.
Issues: Ownership and possession of the suit land, conversion of agricultural land, construction activities, and injunction relief.
Ratio Decidendi: The balance of convenience lies in completion of the construction, and the defendant's undertaking influenced the decision to allow casting of the roof. Legal principles from various cases were considered to determine the applicability of the findings to the present case.
Final Decision: The court dismissed the writ petition, upholding the District Judge's order.
JUDGMENT :
S.K. Mishra, J. - Heard learned counsel for the parties. The present petitioner, being the plaintiff-petitioner in I.A. No. 36/2006 arising out of C.S. No. 40/2006 of the court of Civil Judge (Jr. Division), Aul and respondent No. 1 in F.A.O. No. 40/2012 of the court of District Judge, Kendrapra, assails the judgment dated 17.6.2013 passed by learned District Judge, Kendrapara in the aforesaid F.A.O. allowing the appeal in part and directing the parties to maintain status quo as directed by the learned Civil Judge (Jr. Division) as per the order dated 10.7.2012 in the foresaid I.A.
2. The present petitioner-plaintiff filed a suit for partition and perpetual injunction against the defendants-opposite parties. The suit land measuring Ac.2.18 decs. pertaining to Hal Khata Nos. 15, 16, 17 and 135 of Mouza- Bada Anko. It is averred by the plaintiff that the suit land is the purchased land of both the parties and their names have been jointly recorded in the Major Settlement Record of Rights. It is further averred that the suit land has not been partitioned by metes and bounds between the parties.
3. The further case of the plaintiff-petitioner is that Hal Plot No. 775 measuring Ac.0.32 decs. under Hal Khata No. 17 and Hal Plot No. 777 measuring Ac.0.26 decimals under Hal Khata No. 16 was agricultural land and the kisam was "Bioli". It is averred that the plaintiff and defendants have converted the said agricultural land for non-agricultural purpose such as "Ghara Bari" and thereafter both the parties have constructed puca building containing four rooms and one thatch house containing two rooms over a portion of Hal Plot Nos. 665 and 777. The said puca rooms have been completed upto roof level, but the roof is not yet cast. The cause of action arose when the defendants have threatened to dispossess the plaintiff-petitioner from the suit land. Hence an interim application was filed seeking injunction.
4. The defendant-opposite parties, filed their objection to the interim application. They plead that the suit land is their purchased land and the names of the parties have been recorded jointly in the Major Settlement R.O.R. The defendant-opposite parties have not disputed the averments made in the plaint that the suit land has not been partitioned by metes and bounds between the parties. The defendant-opposite parties have averred that both the parties have purchased Ac.0.34 decimals 8 links from different persons out of Hal Plot No. 777 but during the Major Settlement operation the area of Hal Plot No. 777 has been reduced and recorded as Ac.0.26 decimals.
5. The defendant-opposite parties have specifically pleaded that defendant-opposite party No. 1 has filed O.L.R. Case No. 258 of 2004 u/s 8(A) of the OLR Act and the learned Tahasildar by an order dated 28.10.2004 allowed the conversion in favour of defendant-opposite party No. 1 in respect of Ac.0.023 decs. out of Ac.0.32 decs. appertaining to Plot No. 775 under Hal Khata No. 17 and Ac.0.07 decs. out of Ac.0.26 decs. appertaining to Hal Plot No. 777 under Hal Khata No. 16 and defendant-opposite party No. 1 executed a lease agreement for the entire Ac.0.10 decimals of land with the Tahasildar Aul on 1.12.2004 and paid a premium of Rs. 3030/-to the Government. Since then defendant-opposite party No. 1 has been paying rent to the Government.
6. The further case of the defendant-opposite parties is that defendant-opposite party No. 1 has constructed four roomed puca building and three roomed thatch house over a portion of Hal Plot No. 777/3161 and 775/3160 under Hal Jamabandi Khata No. 794/59 out of his own income and as such the plaintiff-petitioner cannot restrain defendant-opposite party No. 1 from completing the half constructed puca building standing over a portion of Hal Plot Nos. 775 and 777 measuring in Total Ac.0.10 decs. The defendant-opposite party No. 1 has filed an affidavit in the original suit pleading therein that he may be allowed to cast roof of the puca buildin
