The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.273 of 2023 (An application under Article 227 of the Constitution of India) ***** Basanta Kumar Dash .... Petitioner -versus- Sarada Prasad Dash …. Opp. Party For Petitioner : Mr.Dwarika Prasad Mohanty, Advocate For Opposite Party : Mr. Suryakanta Dash, Advocate CORAM:
Legal Reasoning
MR. JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------------
Decision
Heard and disposed of on 29.08.2024 ------------------------------------------------------------------------------- JUDGMENT IA Nos. 255 of 2023 & CMP No.273 of 2023 1. This matter is taken up through hybrid mode. 2. Since similar matter (CMP No.272 of 2023) has been disposed of vide judgment of the even date, on consent of learned counsel for the parties, this CMP is taken up for final disposal. 3. Judgement dated 2nd February, 2023 (Annexure-8) passed in FAO No.20 of 2022 is under challenge in this CMP, whereby learned District Judge, Jagatsinghpur dismissing the appeal confirmed the order dated 7th April, 2022 (Annexure-6) passed by learned Senior Civil Judge (LR and LTV), Jagatsinghpur dismissing IA No.334 of 2018 (arising out of CS No.435 of CMP No.272 of 2023 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 // 2 // 2018) filed by the Plaintiff/Petitioner under Order XXXIX Rules 1 and 2 CPC. 4. Mr. Mohanty, learned counsel for the Petitioner submits that parties to the suit are siblings being sons of late Dibakar Dash. Their father late Dibakar Dash purchased the suit property in the name of the Petitioner and Opposite Party (Plaintiff and Defendant) respectively. In the consolidation of ROR, the suit land stood recorded jointly in the name of both the parties. The Opposite Party managed to prepare separate RORs in respect of the suit property vide Annexures-2/a and 2/b in Mutation Case Nos.4945 and 4946 of 2006. The Petitioner had never applied for separate recording of the suit property before the Tahasildar, Raghunathpur. Impersonating the Petitioner and forging his signature, the Opposite Party managed to file two mutation cases and got the suit land recorded separately in their name. 4.1 When the Opposite Party tried to change the nature and character of the suit property and create disturbance in the peaceful possession of the Petitioner, he filed CS No.435 of 2018 for injunction. In the said suit, the Petitioner also filed IA No.334 of 2018 under Order XXXIX Rules 1 and 2 CPC praying to restrain the Opposite Party from disturbing his possession, destroying/damaging the structure and changing the nature and character of the suit property in any manner whatsoever. Said application was dismissed vide order under Annexure-6 on the ground that ROR in respect of the property over which the construction has been made, stands in the name of the Opposite CMP No.272 of 2023 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 // 3 // Party. In the meantime, the Petitioner also filed Mutation Appeal Nos.87 and 88 of 2018 assailing the order of Tahasildar, Raghunathpur in Mutation Case Nos.4945 and 4946 of 2006. 4.2 Assailing the same, the Petitioner preferred FAO No.20 of 2022. During pendency of the FAO, the Mutation Appeals filed by the Petitioner were allowed setting aside the orders passed in aforesaid Mutation cases and the matter was remitted to the Tahasildar for fresh consideration of both the mutation cases in accordance with law. As such, separate recording of the land in Annexures-2/a and 2/b were set aside and the consolidation ROR, which stood jointly in the name of the parties, became operative. 4.3 Though these facts were brought to the notice of the appellate Court and it took cognizance of the same in his order, but without discussing the effect of the orders passed in Mutation Appeals, reiterated the findings of learned trial Court and dismissed the FAO vide order under Annexure-8. Hence, assailing the same, this CMP has been filed. 5. It is his contention that by impersonating the Petitioner, the Mutation Cases were filed forging his signature. Considering this aspect, the appellate Authority under the Odisha Survey and Settlement Act, 1958 (for brevity ‘the Act’), allowed the appeal and remitted the matter for fresh consideration by the Tahasildar. When the RORs on the basis of which the Opposite Party claims exclusive right over the suit property has already been set aside, learned appellate Court should have allowed the FAO by granting CMP No.272 of 2023 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 // 4 // the interim protection, as prayed for in the petition under Order XXXIX Rules 1 and 2 CPC. Hence, the impugned orders under Annexure-8 and 6 are not sustainable and liable to be set aside. 6. Mr. Dash, learned counsel for the Opposite Party vehemently objects to the same. Although he does not dispute that orders passed in Mutation Cases have been set aside, but while allowing the Mutation Appeals, the appellate authority has categorically held that the Authority under the Act did not have any jurisdiction to go into the correctness of the signature made in the mutation application. Father of the parties to the suit purchased distinct parcels of the suit land in the name of his sons (Plaintiff and Defendant) by virtue of two separate sale deeds. However, the consolidation ROR has been prepared erroneously recording the suit land jointly for revenue purpose. Considering the same, the Tahasidar, Raghunathpur prepared two separate RORs in favour of the parties. He further submits that although the Petitioner claims to be in exclusive possession of the suit property and is paying rent, but he could not produce a scrap of paper regarding payment of rent to the revenue authority. In addition to the above, the Opposite Party being in exclusive possession over the suit house had leased out the same in favour of Kalinga Gramya Bank in the year 2006 and the lease deed was valid till 2018. It is surprising that the Plaintiff-Petitioner, who alleges to be in exclusive possession over the suit property, could not know about the same. Further, from conduct of the parties, it is apparent that the suit land is being enjoyed separately by both the parties by virtue of separate sale deeds executed in their CMP No.272 of 2023 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 // 5 // favour. At the time of purchase, the Opposite Party was a minor. Hence, he could not take appropriate steps for correction of the consolidation ROR. Be that as it may, learned trial as well as the appellate Court held that the Plaintiff/Petitioner failed to satisfy the three ingredients for grant of order of temporary injunction. As such, neither the order under Annexure-6 nor the judgment under Annexure-8 is illegal. Hence, the CMP being devoid of any merit is liable to be dismissed. 7. Heard learned counsel for the parties. On perusal of the case record, it appears that two separate settlement RORs were prepared in the name of the Petitioner and Opposite Party under Annexures-2/a and 2/b recording separate plots in their name. It is also not disputed that the Opposite Party had leased out the building standing over the suit property in favour of Kalinga Gramya Bank. However, the RORs under Annexures-2/a and 2/b have already been set aside by the appellate Authority under the Act. The matter is now pending before the Tahasildar, Raghunathpur for fresh adjudication of the Mutation Cases. In consequence, the consolidation ROR in respect of the suit land becomes operative in which the suit land has been recorded jointly. Consolidation ROR is a document of title. Although there appears some circumstance to assume that there has been severance of status, but admittedly there is no partition by metes and bound. These aspects were not discussed by learned appellate Court, although the subsequent developments were brought to its notice. There was no occasion on the part of learned trial Court to consider the same, as the RORs under CMP No.272 of 2023 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2024 17:12:22 // 6 // Annexures-2/a and 2/b were set aside during pendency of the FAO. In view of the change in circumstances, this Court feels the matter requires fresh consideration by learned trial Court. 8. In view of the above, order under Annexures-6 and judgment under Annexure-8 are set aside and the matter is remitted to learned trial Court for fresh adjudication of IA No.334 of 2018 giving opportunity of hearing to the parties concerned and taking into consideration the subsequent developments took place in the meantime. In order to avoid further delay, parties are directed to appear before learned trial Court on 11th September, 2024 to receive further instruction in the matter. 8.1 Interim order of status quo dated 13th April, 2023 passed in IA No.255 of 2023 shall continue till disposal of IA No.334 of 2018, but it should not influence learned trial Court while adjudicating the IA on its own merit. This interim arrangement is made only to protect the lis during pendency of the IA. As the suit is pending since 2018, learned trial Court should also make its best endeavour to see that it is disposed of at an early date. 9. With the aforesaid observation and direction, the CMP is disposed of. Issue urgent certified copy of the judgment on proper application. (K.R. Mohapatra) Judge s.s.satapathy CMP No.272 of 2023 Page 6 of 6