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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.148 of 1996 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) State of Orissa and another …. Appellants -versus- Pitambar Maikap and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Gyanalok Mohanty, Standing Counsel. For Respondents - Mr. R.K. Mohanty, Sr. Advocate. Ms. S. Mohanty, Advocate. Mr. A.P. Bose, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :10.01.2025 :: Date of Judgment :31.01.2025 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellants in this second appeal were the defendants before the Trial Court in the suit vide T.S. No.390 of 1988-I and appellants before the First Appellate Court in the First Appeal vide T.A. No.25 of 1990. The respondents in this second appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.390 of 1988-I and respondents before the First Appellate Court in the First Appeal vide T.A. No.25 of 1990. S.A. No.148 of 1996 Page 1 of 15 3.
Legal Reasoning
The suit of the plaintiffs (respondents in this second appeal) before the Trial Court vide T.S. No.390 of 1988-I against the defendants (appellants in this second appeal) was a suit for injunction simpliciter. 4. According to the plaintiffs, the suit properties described in Schedule ‘Ka’ of the plaint are their properties. The said properties were gained by gradual accretion to the holdings of the plaintiffs from the recess of river Palpala in the process of alluvion and after accretion of the suit properties to the holdings of the plaintiffs, the same remained under their possession. For which, they (plaintiffs) applied before the appropriate authorities i.e. Revenue Officer-cum-Tahasildar, Basta as per Section 21 of the O.L.R. Act, 1960 for fixation of rent of the said accreted suit properties in their favour and on the basis of the such application under Section 21 of the O.L.R. Act, 1960 of the plaintiffs, a case vide O.L.R. Case No.111 of 1979 was initiated by the Revenue Officer-cum- Tahasildar, Basta and after making due enquiry and on being satisfied about its accretion from the recess of river palpala through process of alluvion and mixing with the original holdings of the plaintiffs, the Revenue Officer-cum-Tahasildar, Basta passed order for fixation of rent of the suit properties in that O.L.R. Case No.111 of 1979 in favour of the plaintiffs and finally disposed of that O.L.R. Case No.111 of 1979 after fixing rent of the same in favour of the plaintiffs and directed for issuance of patta for the said accreted land to the plaintiffs. So, in its subsequent Page 2 of 15 S.A. No.148 of 1996 consolidation operation, the consolidation authorities issued patta in respect of the suit properties in the name of the plaintiffs on the basis of the final order passed in O.L.R. Case No.111 of 1979 under Section 21 of the O.L.R. Act, 1960 and accordingly, since the fixation of rent of the suit properties in favour of the plaintiffs, the plaintiffs paid rent of the same to the Government and obtained rent receipts from the competent authority. As such, while the plaintiffs were possessing the suit properties being the owners thereof, suddenly, on dated 27.08.1988, they (plaintiffs) received a notice from the Tahasildar, Basta about the reopening of the O.L.R. Case No.111 of 1979 for its adjudication afresh due to setting aside of the final order passed in OLR Case No.111 of 1979 by the Board of Revenue, Cuttack. For which, the plaintiffs decided to file the suit against the defendants in order to injunct the defendants permanently from interfering into their possession over the suit properties. So, in order to institute the suit against the defendants i.e. against the State and Tahasildar, Basta, they (plaintiffs) issued statutory notices under Section 80 of the CPC, 1860 to the defendants stating about the averments in the plaint and the cause of action along with the relief requesting them (defendants-State/the Tahasildar, Basta) not to create any disturbance in the possession of the plaintiffs over the suit properties, but when after receiving the said statutory notices, the defendants did not pay any heed to the same, then, they (plaintiffs) filed the suit vide T.S. No.390 of 1988- Page 3 of 15 S.A. No.148 of 1996 I against the defendants praying for restraining the defendants permanently from interfering into the possession of the plaintiffs over the suit properties described in schedule ‘Ka’ of the plaint and from entering into the same along with other reliefs, to which, they (plaintiffs) are entitled for as per law and equity. 5. Having been noticed from the Trial Court in the suit vide T.S. No.390 of 1988-I filed by the plaintiffs, the defendants challenged the same by filing their joint written statement denying the averments made by the plaintiffs in their plaint taking their stands interalia therein that, the Board of Revenue has set aside the final order of fixation of rent in favour of the plaintiffs in respect of the suit properties passed in O.L.R. Case No.111 of 1979 under Section 21 of the O.L.R. Act in a suo motu revision and after setting aside the said final order of fixation of rent in O.L.R. Case No.111 of 1979, the Board of Revenue has remanded back to the said O.L.R. Case No.111 of 1979 to the Tahasildar, Basta for its fresh disposal. As such, the O.L.R. Case No.111 of 1979 is still subjudice before the Tahasildar-cum-Revenue Officer, Basta. When, the O.L.R. Case No.111 of 1979 is still pending/subjudice before the Tahasildar- cum-Revenue Officer, Basta for its adjudication, then, the suit of the plaintiffs is barred under Section 67 of the O.L.R. Act, 1960. As such, the suit of the plaintiffs is not maintainable under law. Therefore, the suit of the plaintiffs is liable to be dismissed. Page 4 of 15 S.A. No.148 of 1996 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 3 (three) numbers of issues were framed by the Trial Court in the suit vide T.S. No.390 of 1988-I and the said issues are:- (i) (ii) (iii) ISSUES Is the suit maintainable in its present form? Have the plaintiffs cause of action to bring this suit? Are injunction? the plaintiffs entitled the relief for i.e. permanent 7. In order to substantiate the aforesaid relief i.e. permanent injunction sought for by the plaintiffs against the defendants, they (plaintiffs) examined one witness from their side i.e. plaintiff No.1 as P.W.1 and exhibited series of documents on their behalf vide Exts.1 to 8. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendants relied upon series of documents on their behalf vide Exts.A & B without examining any witness from their side. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiffs and against the defendants and basing upon the findings and observations made by the Trial Court in all the issues in favour of the plaintiffs, the Trial Court decreed the suit of the plaintiffs vide T.S. No.390 of 1988-I on contest against the defendants as per its judgment and decree dated 22.02.1990 and 07.03.1990 respectively and restrained the defendants permanently from interfering Page 5 of 15 S.A. No.148 of 1996 into the possession of the plaintiffs over the suit properties described in Schedule ‘Ka’ and also restrained the defendants from entering into the same assigning the reasons that, they (plaintiffs) are in possession over the suit properties described in Schedule ‘Ka’, because the suit properties have been gradually accreted to their holdings on the process of alluvion of river Palpala. The Revenue Authority in O.L.R. Case No.111 of 1979 has given findings about the possession of the plaintiffs over the suit properties. The Board of Revenue has no jurisdiction to set aside the order i.e. fixation of rent of the suit properties under Section 21 of the O.L.R. Act, 1960 in favour of the plaintiffs passed by the Tahasildar, Basta in O.L.R. Case No.111 of 1979. Because, the proper authority for setting aside the final order passed in a case under Section 21 of the O.L.R. Act like OLR Case No.111 of 1979 of the OLR Act is the ADM through an appeal, but not the Board of Revenue. 9. On being dissatisfied with the aforesaid judgment and decree dated 22.02.1990 and 07.03.1990 respectively passed by the Trial Court in T.S. No.390 of 1988-I in favour of the plaintiffs and against the defendants, the defendants challenged the same by preferring the first appeal vide T.A. No.25 of 1990 being the appellants against the plaintiffs arraying them (plaintiffs) as respondents after taking several grounds in their appeal memo. S.A. No.148 of 1996 Page 6 of 15 10. After hearing from both the sides, the First Appellate Court dismissed that First Appeal vide T.A. No.25 of 1990 filed by the defendants as per its judgment and decree dated 18.12.1995 and 08.01.1996 respectively concurring/accepting the findings and observations made by the Trial Court in T.S. No.390 of 1988-I against the defendants. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide T.A. No.25 of 1990 of the defendants passed by the First Appellate Court as per its judgment and decree dated 18.12.1995 and 08.01.1996 respectively, they (defendants) challenged the same by preferring this second appeal being the appellants against the plaintiffs arraying them (plaintiffs) as respondents. 12. This Second Appeal was admitted on formulation of the following substantial question of law i.e.:- Whether, the suit for injunction simpliciter filed by the plaintiffs (respondents in the 2nd appeal) vide T.S. No.390 of 1988-I is hit and barred under Section 67 of the O.L.R. Act, 1960 due to pendency of the O.L.R. Case No.111 of 1979 before the Tahasildar, Basta? 13. I have already heard from the learned counsel for the appellants (State-defendants) and the learned counsel for the respondents (plaintiffs). 14. The suit of the plaintiffs vide T.S. No.390 of 1988-I was a suit for injunction simpliciter. Because, the plaintiffs have prayed for injuncting S.A. No.148 of 1996 Page 7 of 15 the defendants permanently from interfering into the possession of the plaintiffs over the suit properties described in schedule ‘Ka’ and from entering into the same. 15. It is the settled propositions of law that, the possession over the suit properties is the main consideration in a suit for injunction simpliciter like the present suit at hand. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions:- In a case between Thimmaiah Vrs. Shabira and others (i) reported in 2008 (2) Civil Court Cases (SC) 277; “plaintiff has to establish that, he is in possession in order to be entitled to a decree for permanent injunction.” In a case between S. Krishnamoorthy and another Vrs. G. (ii) Ramakrishnan reported in 2024 (4) Civil Court Cases 120 (Madras), “In a suit for injunction, question involved in suit pertains to possession and does not relate to dispute involving title. When, plaintiffs proved their possession, supported by documentary evidence in the form of revenue records in order to get decree in his favour, in that case, they (plaintiffs) are entitled for the decree. In case, defendant has any right over subject properties, he can claim possession from the plaintiffs, only by following due procedure established under law.” (iii) In a case between Rame Gowda (dead) by LRs Vrs. M. Varadappa Naidu (dead) by LRs. and another reported in (2004) 1 SCC 769 (at para 3) that, “although the plaintiff had failed in proving his title, he had succeeded in proving his possession over the suit property which he was entitled to protect unless dispossessed therefrom by due process of law.” 16. Here in this case, suit/appeal at hand, it will be seen, whether the defendants i.e. the State and the Tahasildar, Basta are able to establish that, the plaintiffs are not in possession over the suit properties for S.A. No.148 of 1996 Page 8 of 15 making interference with the judgment and decree passed by the Trial Court and First Appellate Court. 17. It is the undisputed case of the parties that, rent in respect of the suit properties was fixed by the Tahasildar, Basta in O.L.R. Case No.111 of 1979 under Section 21 of the O.L.R. Act, 1960 after making due enquiry about the possession of the plaintiffs over the same and on being fully satisfied that, the said suit properties were gained by gradual accretion to the holdings of the plaintiffs from the recess of river Palpala in the process of alluvion fixed the rent of the suit properties in favour of the plaintiffs in that O.L.R. Case No.111 of 1979 and then, the rents for the same were collected by the Government from the plaintiffs as per rent receipts vide Exts.3 to 3/F Series and the said suit properties were recorded by the consolidation authorities in the name of the plaintiffs and accordingly, the patta/R.o.R. of the suit properties was issued by the consolidation authorities in favour of the plaintiffs. Though, in a suo motu revision, the Board of Revenue set aside the order of fixation of rent passed in O.L.R. Case No.111 of 1979 by the Tahasildar, Basta in favour of the plaintiffs and remanded the matter for fresh adjudication by the Tahasildar, Basta, but there is no material in the record either in the order of the Board of Revenue in the suo motu revision or through any other document or evidence to show that, the plaintiffs have been dispossessed from the suit properties or their Page 9 of 15 S.A. No.148 of 1996 possession over the suit properties has been discontinued. As such, Board of Revenue has not denied the possession of the plaintiffs over the suit properties. So, on the basis of the finding of possession of the plaintiffs over the suit properties given by the Tahasildar, Basta in OLR Case No.111 of 1979 under Section 21 of the OLR Act, 1960, the possession of the plaintiffs over the suit properties is established. Therefore, on being fully agreed with the concurrent findings of the Trial Court as well as the First Appellate Court about the possession of the plaintiffs over the suit properties, it is held that, they (plaintiffs) are in possession over the suit properties, but the defendants are not in possession over the same. 18. Now, the question arises, whether the suit of the plaintiffs is hit and barred under Section 67 of the O.L.R. Act, 1960, due to the pendency of OLR Case No.111 of 1979 under Section 21 of the OLR Act, 1960 before the Tahasildar, Basta after its remand by the Board of Revenue for its fresh disposal? It is the settled propositions of law that, in which case, the Revenue Officer under OLR Act, 1960 will have jurisdiction to grant relief of injunction, in that case, the suit for permanent injunction in the Civil Court cannot be maintainable under law. S.A. No.148 of 1996 Page 10 of 15 The law has also further been settled that, when the remedy in special statute is not adequate or efficacious, then, the same is not a ground to cross the bar of the jurisdiction of Civil Court. As such, when the relief sought for by the plaintiff or plaintiffs is not covered under the powers of the authorities under the OLR Act, 1960, then in that case, a suit for such relief can be maintainable under law before the Civil Court. The operation of the bar under Section 67 of the O.L.R. Act, 1960 shall operate depends upon the facts and circumstances of a case. In a proceeding under Section 21 of the O.L.R. Act, 1960, the Revenue Authorities has no jurisdiction to grant injunction in respect of the properties involved therein. In entire scheme of O.L.R. Act, 1960, except in Section 15(7) of the O.L.R. Act, 1960 relating to the adjudication of the dispute between the landlord and tenant for passing of an order of injunction, no other Section of the O.L.R. Act, 1960 provides for passing of an order for an injunction.
Legal Reasoning
On this aspect, it has been clarified in the ratio of a decision between Sri Natha Rout and others Vrs. Biswanath Patra and others reported in 46 (1978) CLT-427 that, “the provisions under Section 15 of the OLR Act, 1960 are not applicable to the proceeding under Section 21 of the OLR Act, 1960.” Therefore, from the scheme of the O.L.R. Act, 1960, it is clear that, the Revenue Officer has no jurisdiction to grant the relief i.e. injunction S.A. No.148 of 1996 Page 11 of 15 in a proceeding under Section 21 of the O.L.R. Act, 1960. For which, the relief i.e. permanent injunction sought for by the plaintiffs against the defendants in the suit in respect of the suit properties is not coming within the powers of the statutory authorities under the O.L.R. Act, 1960 for granting the same. So, the suit of the plaintiffs vide T.S. No.390 of 1988-I against the defendants for permanent injunction in respect of the suit properties cannot be held to be maintainable being hit and barred under Section 67 of the OLR Act, 1960. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) In a case between Panchu Pradhan Vrs. Ramachandra Sethi and others reported in 2002 (II) OLR—392; when the question to be decided is not covered under the powers of the authorities of the Orissa Land Reforms Act, the suit for permanent injunction shall be maintainable.” (Para 12) In a case between Bishnu Charan Mohapatra and others (ii) Vrs. Krushna Chandra Mallick and others reported in 97 (2004) CLT 329; “when Revenue Officer has jurisdiction to grant a relief, in that case, suit in the Civil Court for that relief is not maintainable.” (Para 10) In a case between Srikant Kashinath Jituri and others (iii) Vrs. Corporation of the City of Belgaum reported AIR 1995 (SC) 288 and (1994) 6 SCC 572; “when alternative remedy provided by the statute is not an adequate or efficacious remedy, the same can be ground for maintaining a civil suit. (Para 10) 19. When, the relief i.e. permanent injunction sought for by the plaintiffs against the defendants in respect of the suit properties is beyond S.A. No.148 of 1996 Page 12 of 15 the purview of the statutory authority under OLR Act, 1960 in a proceeding under Section 21 of the OLR Act, 1960, then at this juncture, by applying the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of the above decisions, it cannot be held that, the suit for injunction simpliciter filed by the plaintiffs (respondents in this second appeal) vide T.S. No.390 of 1988-I against the defendants (appellants in this second appeal) in respect of the suit properties in order to restrain the defendants permanently from interfering into the possession of the plaintiffs over the suit properties is not maintainable being hit and barred under Section 67 of the OLR Act, 1960 on the ground of pendency of OLR Case No.111 of 1979 under Section 21 of the OLR Act, 1960 before the Tahasildar, Basta (defendant No.2). For which, in other words, it is held that, the suit of the plaintiffs for injunction simpliciter against the defendants was maintainable under law. 20. Now, the question arises, whether the plaintiffs are entitled for the decree i.e. permanent injunction against the defendants in respect of the suit properties, when the O.L.R. Case No.111 of 1979 under Section 21 of the O.L.R. Act, 1960 is subjudice in respect of the suit properties before the Tahasildar, Basta? 21. As per the discussions and observations made above, when it is established that, the plaintiffs are in possession over the suit properties, but, the defendants have no possession over the same, then by applying Page 13 of 15 S.A. No.148 of 1996 the principles of law enunciated by the Apex Court in the decision referred to supra between Rame Gowda (dead) by LRs Vrs. M. Varadappa Naidu (dead) by LRs. and another reported in (2004) 1 SCC 769 to this suit/appeal at hand, it is held that, instead of the decree i.e. permanent injunction against the defendants, the plaintiffs are entitled to a limited injunction restraining the defendants from interfering into their possession over the suit properties unless they (plaintiffs) are dispossessed therefrom by due process of law. 22. When it is held that, instead of permanent injunction, the plaintiffs are entitled for limited injunction and when both the Courts below have passed decree for permanent injunction in favour of the plaintiffs, then at this juncture, there is justification under law for making a little interference with the same through this second appeal preferred by the appellants. Because, instead of permanent injunction, the plaintiffs are entitled for limited injunction, for the reasons assigned above. Therefore, there is some merit in the appeal of the appellants (defendants). The same is to be allowed in part. 23. In result, the appeal filed by the appellants (defendants) is allowed in part on contest against the respondents, but without cost. The judgments and decrees passed by the Trial Court and First Appellate Court in T.S. No.390 of 1988-I and T.A. No.25 of 1990 respectively are set aside in part and modified as follows. Page 14 of 15 S.A. No.148 of 1996 The suit be and the same vide T.S. No.390 of 1988-I filed by the plaintiffs is decreed in part on contest against the defendants, but without cost. The defendants (appellants in this second appeal) are restrained from interfering into the possession of the plaintiffs over the ‘Ka’ schedule suit properties and they (defendants) are also restrained from entering into the same, till they (plaintiffs) are evicted therefrom by due process of law. Orissa High Court, Cuttack. 31.01.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2025 15:14:22 S.A. No.148 of 1996 Page 15 of 15