The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:11:34 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.145 OF 2024 Udaya Narayan Panda …. Petitioner Mr. S.S. Nayak, Advocate State of Odisha and others …. Opp. Parties -versus-
Legal Reasoning
Mr. Amiya Kumar Mishra, Additional Government Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 05.03.2024 This matter is taken up through hybrid mode. Petitioner in this CMP seeks to assail the order dated 24th Order No. 01. 1. 2. January, 2024 (Annexure-6) passed in FAO No.05 of 2018, whereby learned Additional District Judge, Bhadrak allowing the appeal reversed the order dated 8th December, 2017 (Annexure-4) passed by learned Civil Judge, (Junior Division), Bhadrak in IA No.271 of 2017 (arising out of CS No.371 of 2017). 3. Mr. Nayak, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title and interest and for injunction over the suit property. The suit Schedule ‘B’ property has been recorded in Government Khata under Gochar Kisam of land. It was not within the knowledge of the Plaintiff. The Suit Schedule ‘B’ land adjoins the land of the Plaintiff. The Plaintiff has his residential house over his recorded land, which extends over the Schedule ‘B’ land. When an encroachment proceeding was initiated against him under the OPLE Act, 1972 (for short ‘the Act’), the Petitioner came to know about the same. On measurement through a private Amin, it came to light that some portion of his land has been wrongly recorded under the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:11:34 // 2 // Government Khata as Gochar Kisam land. Hence, he filed the suit for the aforesaid relief. In the meantime, proceeding under the Act has been decided against the Petitioner by directing eviction from Schedule ‘B’ land. Appeal and revision against the said order have already been dismissed. As such, the Petitioner apprehends imminent eviction from the land and demolition of his residential house. Hence, the Plaintiff filed application under Order XXXIX Rules 1 and 2 CPC in IA No.271 of 2017, which was disposed of on 8th December, 2017 (Annexure-4) directing the parties to maintain status-quo over the suit property. The Government Officials, namely, the Collector and Tahasildar, Bhadrak being aggrieved, preferred appeal against the said order in FAO No.05 of 2018, which has been allowed by reversing the order passed under Annexure-4. Hence, this CMP has been filed. 4. Mr. Nayak, learned counsel for the Petitioner further submits that at no point of time, before initiation of the encroachment case, there was any objection for occupation of Schedule ‘B’ land. Schedule ‘B’ land is the property of the petitioner, which has been wrongly recorded in the Government Khata. Further, his residential house is also standing over Schedule ‘B’ land. Thus, a suit for right, title, interest and for injunction is maintainable in view of ratio in State of Orissa, through Collector Sundargarh and another vrs. DAitari Sahu and others, reported in 2007 (I) OLR, 52. It is further submitted that since the order of eviction has already been passed, the residential house of the Petitioner is likely to be demolished at any moment if temporary order of injunction is not granted . Learned trial Court considering the same in its proper perspective, directed the parties to maintain status-quo. But, learned appellate Court being swade away by the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:11:34 // 3 // fact that the land has been recorded as ‘Gochar’ and the Petitioner has lost in all the fora under the Act, rejected the same. Hence, he prays for setting aside the impugned order under Annexure-6. 5. Mr. Mishra, learned Additional Government Advocate vehemently objects to the same. It is his submission that no portion of the residential house of the Petitioner situates over Schedule ‘B’ land, which is recorded as ‘Gochar’. The land is required for developmental purposes. Since the land is in the nature of ‘Gochar’ and the Petitioner without any semblance of right, title and interest is forcibly occupying the same, learned appellate Court has committed no error in vacating the order of status-quo, more particularly, when the Petitioner has lost all in the fora under the Act. He, therefore submits that the CMP being devoid of any merit, should be dismissed. 6. Taking note of the submission made by learned counsel for the parties, this Court finds that the Plaintiff claims title over the suit property as of his own right. He does not claim settlement of a Government land in his favour. Thus, the analogy, under which learned appellate Court proceeded, appears to be erroneous. The Petitioner specifically claims that his land has been wrongly recorded in the name of the Government. The Schedule ‘B’ land situates adjacent to the recorded land of the Petitioner. Thus, it appears that there is a boundary dispute between the parties. It further appears that the Plaintiff claims that his residential house extends over ‘B’ Schedule property. But Mr. Mishra, learned Additional Government Advocate vehemently objects to the same and submits that no document was filed to show that any portion of the residential house is existing over ‘B’ Schedule land. Existence of residential house over Schedule ‘B’ land is the matter of fact and Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2024 17:11:34 // 4 // can be ascertained by receiving evidence from the parties. Thus, at this stage, it is very difficult to record any finding on the same. 7. When the Petitioner claims that his residential house extends over ‘B’ Schedule land, and if he is not protected, the same may be demolished at any moment, this Court feels that the Plaintiff should be protected during pendency of the suit. Had it been a suit for injunction-simplicitor, this Court would not have interfered with the impugned order. In the instant case, the suit is filed for declaration of right, title and interest as well as for injunction and that there is imminent danger to the Plaintiff for his eviction from the Schedule ‘B’ land as they have lost in all the fora under the Act. As such, this Court feels that the status-quo over the suit property should be maintained till disposal of the suit. 8. Accordingly, the impugned order under Annexure-6 is set aside and the order dated 8th December, 2017 passed by learned Civil Judge (Junior Division), Bhadrak in IA No.271 of 2017 filed under Order XXXIX Rules 1 and 2 CPC is restored. 9. Accordingly, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4