The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 965 of 2023 Kamal Kishor Sharma Petitioner Mr. Sourav Suman Bhuyan, Advocate .... State of Odisha and others -versus- CORAM: … Opposite Parties Mr. Swayambhu Mishra, Additional Standing Counsel Order No. ORDER 26.09.2024 JUSTICE K.R. MOHAPATRA 12. 1. This matter is taken up through hybrid mode. 2. Judgment dated 29th April, 2023 (Annexure-5) passed in FAO No.1 of 2023 is under challenge in this CMP, whereby learned Additional District Judge, Kantabanji dismissed the appeal
Facts
confirming the order dated 28th February, 2023 (Annexure-4) passed by learned Civil Judge (Senior Division), Kantabanji in IA No.1 of 2023 (airing out of CS No.55 of 2022), dismissing an application filed by the Plaintiff/Petitioner under Order XXXIX Rules 1 and 2 CPC.
Legal Reasoning
Petitioner does not have any prima facie case, by his order dated 28th February, 2023 (Annexure-4), rejected the petition. Hence, the Petitioner filed FAO No.1 of 2023, which was also dismissed vide judgment under Annexure-5. Hence, this CMP has been filed assailing the same. 4. It is his submission that the State Government on an erroneous impression that the suit land is government property, initiated a proceeding under the Odisha Prevention of Land Encroachment Act, 1972 (for short, ‘OPLE Act’), which is without Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 // 3 // jurisdiction. The land was settled in the name of Ram Pratap Puranmal @ Agrawal in a Nazul Case on permanent lease basis. The said settlement on permanent lease has not yet been determined and stands as it is till date. Since the settlement was on the basis of a permanent lease, the ROR prepared in the name of the Government is erroneous. On the basis of an erroneous ROR, eviction proceeding was initiated and eviction order has been passed. Relying upon the case of Government of Andhra Pradesh v. Thummala Krishna Rao and another, reported in (1982) 2 SCC 134 followed by this Court in State of Orissa and others vs Daitari Sahu and others, reported in 2007 (I) OLR 52 and State of Orissa and others vs Sahukar Gurumurty reported in 2008 (II) OLR 170, Mr. Bhuyan, learned counsel for the Petitioner submits that when a complicated question of right, title and interest is involved, in respect of a particular property eviction order in a summary proceeding under the OPLE Act is not maintainable. Thus, the proceeding under the OPLE Act is without jurisdiction. Hence, he submits that eviction order, if any, passed against the Petitioner is also without jurisdiction, as the question of right, title and interest of the Petitioner is yet to be adjudicated in the present suit. Learned appellate Court proceeded on a footing that on the basis of ROR published in the year 1976 the Government has acquired right, title and interest over the suit property. Such a finding is erroneous as it may affect the merit of the suit. He, therefore, submits that learned appellate Court having proceeded under a misconception that the State Government has right, title and interest over the suit property, the impugned order is not sustainable. Hence, he prays for setting aside the impugned order under Annexures-4 and 5 and prays for Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 // 4 // restraining the Defendants/Government functionaries from evicting the Petitioner from the suit land till disposal of the suit. 5. Mr. Mishra, learned ASC for the State-Opposite Parties submits that the ROR has been published in the name of the Government since 1976. Neither said Ram Pratap Puranmal @ Agarwal nor the Petitioner had ever challenged the same, as yet. Further the Plaintiff has filed the suit claiming adverse possession against said Ram Pratap Puranmal @ Agarwal then against the State Government. But Ram Pratap Puranmal has not been made a party to the suit. It is his submission that since the eviction order has already been passed by the competent authority learned trial Court as well as the appellate Court has committed no error in rejecting the petition under Order XXXIX Rules 1 and 2 CPC. He further submits that the opinion formed by learned appellate Court is prima facie in nature basing upon the ROR and the pleadings of the Plaintiff/Petitioner. Thus, no concrete finding was recorded by the appellate Court with regard to right, title and interest of the Plaintiff/Petitioner as alleged by the Petitioner. It is his submission that the suit being incompetent without impletion of the party against whom the Petitioner claims adverse possession, no order of injunction can be passed. He, therefore, submits that learned trial Court committed no error in dismissing the prayer for temporary injunction. 6. Heard learned counsel for the parties and perused the materials on record. From the submissions of learned counsel for the parties and the findings arrived at by learned Courts, it appears that the ROR in respect of the suit property has been prepared in the year 1976 in favour of the State. The same was not challenged by Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 // 5 // said Ram Pratap Puranmal @ Agarwal, in whose favour the suit land was allegedly settled in Nazul case. Although the Petitioner claims that he has entered into possession of the suit land in the year 1976 on the day of Vijaya Dasami, but in the remark column of the ROR no such endorsement has been made. As claimed in the pleadings in the plaint, the Plaintiff claims adverse possession against Ram Pratap Puranmal and thereafter against the State Government. However, said Ram Pratap Puranmal has not been made party to the suit. It is, however, submitted by Mr. Bhuyan, learned counsel for the Petitioner that said Ram Pratap Puranmal having died in the meantime, an application for impletion of his legal heirs is pending before learned trial Court. Due to non- cooperation of the Defendants no order could be passed, as yet. 7. From the above, it appears that when the petition under Order XXXIX Rules 1 and 2 CPC was moved, said Ram Pratap Puranmal was not a party to the suit. It further appears that the property has been record as ‘Sarbasadharana’ since 1976. Thus, it kept for the development purpose. It is also not disputed that the eviction order has already been passed against the Petitioner and the same is yet to be challenged. 7.1 In that view of the matter, it appears that the true owner, namely, the State Government against whom the Plaintiff claims adverse possession, has followed due procedure of law in issuing notice of eviction against the Petitioner. The said order of eviction is still in force. From the above, it is apparent that the Petitioner is in unauthorised possession of the suit property, which is kept for developmental purpose being recorded as ‘Sarbasadharana Rasta’. Petitioner, however, relied upon the case of Thummala Krishna Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 // 6 // Rao (supra), wherein, it is held that when a complicated question of title is involved, the State Authorities should not resort to summary proceeding for eviction of the encroachment. In the instant case, it appears that the eviction proceeding was initiated and order of eviction was passed prior to filing of the suit. Be that as it may, no prayer has also been made in the suit challenging the proceeding initiated under the provisions of OPLE Act or order passed therein. On perusal of the judgment under Annexure-5 passed by learned appellate Court, it appears that the observation that the right, title and interest of the suit schedule land stands in favour of the State Government is prima facie in nature of basing upon materials available on record. 8. Thus, on a cumulative assessment of the facts and circumstances, I am not inclined to interfere with the impugned order under Annexure-5. 9. Accordingly, the CMP merits no consideration and the same is dismissed as such. (K.R. Mohapatra) Judge s.s.satapathy Page 6 of 6
Arguments
3. Mr. Bhuyan, learned counsel submits that the suit has been filed for declaration of right, title and interest of the Plaintiff- Petitioner holding that the suit property has been settled in favour of one Ram Pratap Agrawal who has been granted Nazul Patta on in Nazul Case No.13/29 of 1941-42. The Petitioner also prayed to hold that recording of the Kisam of the land as ‘Sarbasadharana’ in current Settlement is erroneous. The Petitioner also prayed for a decree of permanent prohibitory as well as mandatory injunction. Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OR ORISSA CUTTACK Date: 30-Sep-2024 14:50:44 // 2 // 3.1 It is his submission that the land was settled in favour of said Ram Pratap Puranmal @ Agrawal on 24th November, 1941 on permanent lease basis in Nazul Case No.13/29 of 1941-42 and Nazul Patta was also issued in his favour. Thereafter, he sold the said land to one Bhanjalal Agrawal and ultimately the Plaintiff acquired the same and residing thereon along with his family members by constructing his residential house since the day of Vijaya Dasami in 1976. Although the land has been recorded as ‘Sarbasadharana Rasta’, it has never been used as such. However, the ROR was prepared in favour of the State Government for which an encroachment case was initiated and issued notice of eviction without following due procedure of law. Since the Petitioner apprehended eviction from the suit property and demolition of his residential house, the aforesaid suit has been filed. 3.1 Along with the plaint, the Petitioner also filed an application under Order XXXIX Rules 1 and 2 CPC praying inter alia to restrain the Defendants/State functionaries from evicting the Petitioner from the suit property. The said application was registered as IA No.1 of 2023. Learned trial Court holding that the