Advocates:
['PRAKASH KUMAR MISHRA', '', 'R K SAHOO', 'A K DAS', 'B BAL', 'S S SATYADARSHI']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 1231 OF 2022

Ujjal Sahoo

....

Petitioner

Mr. Prakash Kuamr Mishra, Advocate

-versus-

State of Odisha and others

&. Opp. Parties

Mr. Swayambhu Mishra,

Additional Standing Counsel

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

09.01.2023

1. 1.

This matter is taken up through hybrid mode.

2.

The Petitioner in this CMP seeks to assail the order

dated 31^st October, 2022 (Annexure-4) passed by learned

Additional District Judge, Nayagarh in FAO No. 04/01 of 2022

confirming the order dated 22^nd January, 2022 passed by learned

Civil Judge (Senior Division), Khandapada in I.A. No.42 of

2021 (arising out of C.S. No. 95 of 2021).

3.

Mr. Mishra, learned counsel for the Petitioner submits

that the suit land, i.e. Plot No. 1752 under Khata No. 1401 to an

extent of Ac.0.03 decimals situated in mouza Kantilo under

Khandapada Tahasil in the district of Nayagarh is in occupation

of the Plaintiff. Although the land stands recorded in

Government Khata as Abada Jogya Anabadi, she is possessing

the same by constructing her residential house thereon. Power

connection in her name has been made to the said plot. An

encroachment proceeding has also been initiated against her

alleging unauthorized occupation. The Petitioner had paid the

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penalty assessed by the authority, but the proceeding under the

O.P.L.E. Act, 1972 is still pending for adjudication and no

eviction order has yet been passed. At this juncture, the suit

land has been leased out in favour of Opposite Party No.3.

When the Tahasildar, Khandapada along with police personnel

came to the spot for demarcation, the Petitioner came to know

about the same and filed the suit for declaration of her right, title

and interest over the suit property by way of adverse possession

and for permanent injunction. Along with the plaint, the

Petitioner also filed an application in I.A. No. 42 of 2021 under

Order XXXIX Rules 1 and 2 C.P.C. to restrain the Opposite

Party from coming upon the suit land. The said application was

rejected vide order dated 22^nd January, 2022 holding that the

land stands recorded in the name of the Government and there is

no evidence on record to show that the Petitioner is in

possession over the suit property. Assailing the same, the

Petitioner preferred an appeal, which is pending before learned

Additional District Judge, Nayagarh in FAO No. 04/01 of 2022.

Learned Appellate Court reiterating the finding of learned trial

Court dismissed the appeal vide judgment dated 31^st October,

2022. It is his submission that the Petitioner had produced the

electricity bill along with photographs to show that she is in

possession over the suit land. Learned trial Court holding that

photograph does not show that any dwelling house is existing

over the suit property and there is nothing on record to co-relate

the electricity bill with the suit plot, rejected the application.

Learned Appellate Court while confirming the order passed by

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learned trial Court most erroneously held that the Petitioner has

other remedy to challenge the validity of the lease and the case

of the Petitioner does not satisfy the three ingredients for grant

of an order of temporary injunction. As such, the impugned

orders are not sustainable and are liable to be set aside.

4.

Mr. Mishra, learned Additional Standing Counsel

vehemently objects to the submission made by Mr. Mishra,

learned counsel for the Petitioner and submits that admittedly

the State Government is the owner of the suit property. A true

owner cannot be restrained from enjoying the property. As

concurrently held by both the Courts, th