Orissa High Court
Smt. Chandramani Dei vs Sri Chetan Kumar Tekriwal on 21 March, 2002
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. L.C.R. is available for perusal.
2. Heard.
3. This Civil revision is disposed of at the stage of hearing on admission, on consent of both the parties.
4. This revision is directed against refusal of injunction by the Civil Judge (Senior Division), Bhubaneswar in Misc. Case No. 537 of 1999 and also by 2nd Addl. District Judge, Bhubaneswar in Misc. Appeal No. 14/34 of 2000.
5. The disputed land is a vacant space measuring about Ac. 0.85 decimals of land appertaining to Hal Plot No. 3664 under Hal Khata No. 302. The said land situates in Goutamnagar, Bhubaneswar. The plaintiff/petitioner claims right, title, interest and possession on the basis of a registered 'Istamurari Chirastayee Patta', vide registered deed No. 3574, dated 23.12.1955, obtained from the intermediary whereas the defendant/opp. party claims title and possession over the said land on the basis of a registered sale deed from one Gandharba Swain, his vendor. According to the opposite party, Gandharba Swain was settled with that land on permanent lease basis by the Executive Officers of the Lingaraj Temple after an order on 21.5.1960 under Section 19 of the Hindu Religious Endowment Act was passed in his favour by the Commissioner of Endowment, Orissa, Bhubaneswar. Learned Civil Judge (Senior Division) rejected the claim of injunction, as sought for by the plaintiff/petitioner, on the ground that she has lost possession of the said land and, therefore, balance of convenience does not lean in her favour. In that process learned Civil Judge considered the merit of the contention of the opposite party and accepted a case of possession in his favour on the basis of the sale deed and the orders and documents (referred to above) conferring right on his vendor. In the appellate Court an application under Order 41, Rule 27, C.P.C. was filed and some documents were filed which were accepted on record by allowing the application for additional evidence. Such documents were filed to show that, in fact the concerned case under Section 19 of the O.H.R.E. Act was neither relating to the vendor Gandharba Swain nor relating to the suit property and therefore the defendant/ opp. party misled the Courts below by relying on manufactured/ fabricated documents. As rightly argued by learned counsel for the petitioner, at the stage of hearing and disposal of the appeal learned 2nd Addl, District Judge has completely omitted to consider such documents and the implications thereof besides the effect thereof. On the other hand, simply going by the pleadings of the parties of following the logic advanced by the learned Civil Judge, he also dismissed the appeal on the self-same ground.
6. Learned counsel for the petitioner while highlighting the aforesaid facts and circumstances besides reiterating the right of the petitioner on the basis of her pleading, prays for an order of temporary injunction as against the opp. party. On the other hand learned counsel for the opposite party without replying to the implications of the additional evidence filed in the Court below argues that since the suit land is a vacant space and is being used as a passage and some temporary structures like sheds are there he is prepared to maintain that status quo until adjudication of the dispute between the parties.
7. Non-consideration of the documents by the appellate Court would have required this Court to remand the matter for fresh disposal after due consideration of such documents. But the controversy can be remedied by an appropriate order from this Court and therefore an order of remand is avoided.
8. Admittedly the suit land is a vacant area. Therefore, as has been suggested by learned counsel for the opposite party, status quo of that land in that manner shall be maintained and neither of the parties shall interfere with the character of that land in any manner whatsoever. So far as the temporary sheds which are existing there, the opposite party is directed to remove the same within a period of two weeks from today and report compliance to the learned Civil Judge (Senior Division), Bhubaneswar with the due intimation to the petitioner. In case of any dispute in that respect, learned Civil Judge shall depute a Pleader Commissioner to verify that aspect at the cost of the opposite party. The aforesaid status quo shall be maintained by the parties until further orders or until disposal of the suit, whichever occurs earlier.
9. So far as the additional evidence which was filed by the petitioner in the Court of Additional District Judge, if that shows that the documents relied on by the opposite party regarding grant of permission under Section 19 of the O.H.R.E. Act are fake or fabricated, then that is a serious matter and therefore the said documents be sent to the Court of Civil Judge (Senior Division), Bhubaneswar, who shall conduct an enquiry in accordance with the provision in Chapter XVI of the Code of Criminal Procedure, 1973, and to proceed with the matter in accordance with law. In the matter relating to the aforesaid enquiry if the Civil Judge shall require any assistance of the Commissioner of Endowment by production of relevant records or otherwise, as per this direction the Commissioner, Endowment shall co-operate with the Court in that respect sincerely and expeditiously.
10. In course of the argument it is found that the Executive Officer, Lingaraj Temple and the Commissioner of Endowment are proper parties to the litigation. Therefore, plaintiff/petitioner shall take appropriate steps within a period of two weeks hence to include them as defendants in the suit.
The Civil Revision is disposed of accordingly. Send back the L.C.R.