The High Court
Case Details
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 No.
Decision
ORDER 09.01.2023 This matter is taken up through hybrid mode. 1. 1. 2. The Petitioner in this CMP seeks to assail the order dated 31st October, 2022 (Annexure-4) passed by learned Additional District Judge, Nayagarh in FAO No. 04/01 of 2022 confirming the order dated 22nd 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 Page 1 of 4 // 2 // 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 22nd 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 31st 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 Page 2 of 4 // 3 // 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, the Petitioner failed to establish that she is in possession over the suit property. As such, both the Courts have committed no error in dismissing the application for injunction. He also relied upon the decision of this Court in the case of State of Orissa and another –v- Abu Bakkar Babib, reported in AIR 2017 Ori 36, wherein it has been held at paragraph-12 as under: “12. Admittedly, the proceeding under the OPLE Act was initiated against Adarmani and penalty was imposed. She paid the same. Thus, she admits the title of the State. Her possession was not hostile to the real owner and amount to a denial of her title to the property claimed. Adarmani was an encroacher. An encroacher of a Government property has no right to alienate the same. At best the plaintiff is a trespasser on the suit property. Thus this is a case of one trespasser trespassing against another trespasser.” (emphasis supplied) He, therefore, prays for dismissal of CMP. 5. Taking into consideration submissions made by learned counsel for the parties and on perusal of the record, it is Page 3 of 4 // 4 // apparent that the suit land stands recorded in the name of Government under Abada Jogya Anabadi status. It is also admitted by learned counsel for the parties that the land has been leased out in favour of Opposite Party No.3. Although learned counsel for the Petitioner vehemently argued that the Petitioner is in possession over the suit land and encroachment proceeding is still pending, but no material to that effect is placed before this Court. He further submits that the Petitioner has filed electricity bill and some photographs stating that the Petitioner is in possession over the suit land, but on facts, learned trial Court as well as learned appellate Court have disbelieved the same by observing that said documents do not establish the possession of the Petitioner over the suit land. 6. Mr. Mishra, learned counsel admits that the Petitioner has already paid the penalty. Hence, the hostile animus against the true owner does not exist as observed in Abu Bakkar Babib (supra). Law is well settled that a true owner should not be restrained from enjoying the property. Thus, learned trial Court as well as learned appellate Court have committed no error in rejecting the prayer made in the petition under Order XXXIX Rules 1 and 2 C.P.C. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. . bks (K.R. Mohapatra) Judge Page 4 of 4