IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.236 of 2024

(An application under Article 227 of the Constitution of India)

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Abakash Behera @ Bihara ...… Petitioner

-Versus-

Sudam Charan Jena & Others ..…. Opp. Parties

Advocate(s) appeared in this case :-

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For Petitioner : Mr. Sandeep Rath, Advocate

For Opp. Parties : Mr. H.S. Satapathy, Advocate

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CORAM:

JUSTICE SASHIKANTA MISHRA

J U D G M E N T

23^rd of October, 2025

SASHIKANTA MISHRA, J.

The petitioner is the defendant No.3 in Civil

Suit No.342 of 2022 pending in the Court of learned Civil Judge (Sr. Division), Jajpur Road, filed by the

present Opposite Parties as Plaintiffs.

2. In the present application filed under Article 227 of the Constitution of India, the defendant- petitioner seeks to challenge the order dated 07.12.2023 passed by the learned Additional District Judge, Jajpur

Road in FAO No.15 of 2023 reversing the order dated 25.04.2023 passed by the trial Court in Interim Application No.181 of 2022 arising out of the aforementioned suit.

3. The plaintiffs have filed the suit in representative capacity as villagers of Jakhapur claiming the following relief:-

“11.That the plaintiffs therefore, prayed:-

i.Let it be declared that the villagers of village Jakhapura including plaintiffs have communal right over the suit land.

ii.Let the defendant No.3 be permanently restrained from entering upon the suit land.

iii.Let the cost of the suit allowed in favour of the plaintiffs.

iv.Let any other relief and reliefs in favour of plaintiffs which deemed fit and proper as per law.

And for this act of your honour and kindness the plaintiff’s as in duty bound shall ever pray.”

4. They also filed the aforementioned interim application seeking an order of injunction against the defendant No.3. It was claimed that they have a strong prima facie case, balance of convenience lies in their favour and that they shall suffer irreparable loss which cannot be compensated in terms of money if an order restraining the defendant No.3 from alienating the suit land or making any new construction or creating any third party interest is not passed. The defendant No.3 filed his objection stating that he has valid title and possession over the suit land having purchased the same from its rightful owner. Further, the suit land also stands recorded in his name.

5. After hearing learned counsel for both parties, the trial Court, by order dated 25.04.2023 found that the question whether the suit land is communal land and whether the same vested to Government after vesting etc., is to be decided in the original suit. However, the plaintiffs have a fair question to raise. It was thus held that the plaintiffs have a prima facie in their favour. As regards irreparable loss, the trial Court, considering the relevant documents of title along with rent receipts found the defendant No.3 to be prima facie in possession over the suit property. It was also found that the plaintiffs could not adduce any evidence to support their plea of the land being used for communal purposes. It was also held by the trial Court that in case the suit land is alienated during pendency of the suit, the doctrine of lis pendence would become applicable. Thus, finding that the defendant No.3 is in possession of the suit land, the trial Court held that the balance of convenience lies in his favour. As such, the interim application was dismissed. The plaintiffs carried appeal to the District Court which was disposed of by learned Addl. District Judge.

6. Learned Additional District Judge found that there was no document to support the fact that the suit land is used for communal purposes. There were also documents to show that the defendant No.3 had purchased the land from its recorded owner and was in possession. Having held thus, the first appellate Court was of the view that the title of the property and possession is not clear, which is