Orissa High Court
Rama Chandra Guru vs Nilamani Guru & Ors. .... Opp. Parties on 16 September, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 289 of 2021
Rama Chandra Guru .... Petitioner
Mr. Samir Kumar Mishra,
Advocate
-versus-
Nilamani Guru & Ors. .... Opp. Parties
Mr. H. N. Mohapatra,
Advocate
(For O.Ps.1 to 12)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 16.09.2021 08. 1. This matter is taken up through hybrid mode.
2. Heard Mr. Mishra, learned counsel for the Petitioner and Mr. Mohapatra, learned counsel for the Opposite Parties.
3. This CMP has been filed assailing the order dated 19th April, 2021 (Annexure-2) passed by learned Second Addl. District Judge, Puri in FAO No.5/2 of 2021, whereby he set aside the order dated 24th December, 2020 (Annexure-1) passed by learned Civil Judge (Junior Division), Puri in I.A. No.93 of 2019 (arising out of C.S. No.148 of 2019) filed by the Petitioner under Order XXXIX Rules 1 and 2 CPC.
4. Mr. Mishra, learned counsel for the Petitioner submits that C.S. No.148 of 2019 has been filed for declaration of right, title and interest over the suit land and for permanent injunction. Along Page 1 of 1 // 2 // with the plaint, I.A. No.93 of 2019 has been filed under Order XXXIX Rules 1 and 2 CPC with a prayer to restraint the Opposite Parties 1 to 12 from interfering with the possession over sthitiban property and from alienating the same in any manner and to restrain the Opposite Party No.13 from interfering with the possession of the Petitioner over 'A' Scheduled property and from alienating the same in any manner till disposal of the suit.
5. Learned trial Court vide his order dated 24th December, 2020 directed the parties to maintain status quo over the suit schedule 'A' and 'B' property as to the nature and character of the suit land till disposal of the suit. Assailing the same, Opposite Parties preferred FAO No.5/2 of 2021.
6. Mr. Mishra, learned counsel for the Petitioner submits that in 1927 R.O.R. the suit schedule land was recorded in the name of common ancestor, namely, Fakir Guru. But, taking advantage of the fact that in 1977 R.O.R., the land was recorded in the name of Jagannath Guru, the predecessor of the present Opposite Parties, who are creating disturbance in the peaceful possession of the Petitioner and trying to create third party interest over the suit land. Hence, learned trial court taking into consideration the facts and circumstances of the case has rightly directed the parties to maintain status quo with regard to the nature and character of suit land. It is his submission that unless the Opposite Parties are restrained from interfering with his possession and creating any third party interest together with changing the nature and character of the suit land, the Petitioner will be highly prejudiced and he will suffer irreparable loss inasmuch as even after the suit is decreed in Page 2 of 6 // 3 // his favour, he will not be in a position to enjoy the fruits of the decree.
7. Mr. Mohapatra, learned counsel for the Opposite Parties 1 to 12 vehemently objected to the above and submitted that basing upon the similar pleadings, Laxman Guru and Shyamsundar Guru had filed C.S. No.343 of 2014 claiming similar relief. In the said suit, the Petitioner had filed an application under Order 1 Rule 10 (2) CPC for transposition of the plaintiff, which was rejected. Assailing the same, he preferred CMP No.744 of 2017 and by order dated 20.12.2018, this Court allowed the Petitioner to be transposed as plaintiff, but he did not cooperate with the Court to sign the plaint to be transposed as plaintiff for which the order of his transposition as plaintiff was recalled. Assailing the said order, the Petitioner preferred CMP No.234 of 2019 which was allowed subject to payment of cost of Rs.3,500/-. In spite of the same, the Petitioner did not take any step to be transposed as plaintiff. As the plaintiff did not take any step in the suit, the same was dismissed for default. As such, the present CMP for the self-same relief is not maintainable.
8. Mr. Mohapatra, further submitted that Fakir Guru was offering jagir, i.e. Paika Seba to Lord Jagannath for which the land was settled in his favour. After Fakir Guru, his son Jagannath Guru performed the said Paika Seba for which the land was recorded in his name in 1977 ROR and also recognized as tenant in respect of the said land under the OEA proceedings.
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9. Subsequently, during consolidation operation, the present Petitioner filed objection to record the land in his name, which was rejected and ROR was published in the name of Opposite Party Nos. 1 to 12 under Sthitiban Status. He, however, submits that during preparation of consolidation proceeding, Section 5(1) notification under the provisions of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Consolidation Act') was made for which ROR was published under Section 13(4) of the Act. As the land was exclusively recorded in the name of Opposite Party Nos.1 to 12 under Sthitiban Status, no injunction should be granted restraining them from enjoying their property. Therefore, Mr. Mohapatra, learned counsel for the Opposite Party Nos.1 to 12 submits that the impugned order should not be interfered with. He further submits that in the said suit, an application under Order VIII Rules 1 and 2 C.P.C. was also filed bearing I.A. No. 121 of 2014 claiming similar relief, which was rejected. He, therefore, prays for dismissal of the writ petition.
10. Mr. Mishra, learned counsel for the Petitioner does not dispute the factual position, as submitted by Mr. Mohapatra, learned counsel for Opposite Party Nos.1 to 12. He, however, submits that ROR published under Section 13(4) of the Consolidation Act is deemed to have been published under Section 12(B) of the Orissa Survey and Settlement Act, 1958. Thus, it cannot be treated to be the ROR under the Consolidation Act.
11. In reply to the submission of Mr. Mohapatra, learned counsel for the Opposite Party Nos.1 to 12, Mr. Mishra, learned Page 4 of 6 // 5 // counsel for the Petitioner submits that in the meantime, Sri Jagannath Temple Administration, Puri has filed an application for intervention in the suit which is pending for consideration. Another suit in respect of the self-same land in C.S. No.350 of 2021 has also been filed impleading the present Petitioner and Opposite Parties as defendants claiming right, title and interest, which is pending before the learned Civil Judge (Senior Division), Puri. Mr. Mohapatra, learned counsel for the Opposite Party Nos.1 to 12, however submits that the same is yet to be taken up for admission.
12. Taking into consideration the admitted factual position, it appears that the land is recorded in the name of Opposite Party Nos.1 to 12 under Sthitiban status in the ROR published under Section 13 (4) of the Consolidation Act. Thus, it attracts the presumption of their possession over the suit land till its disposal in accordance with law.
13. It further appears that although a prayer was made by the Petitioner to restrain the Opposite Party Nos.1 to 12 from alienating the suit property, but learned trial court, while directing the parties to maintain status quo over the suit land with regard to its nature and character, has not granted any relief with regard to interim injunction for alienation of the property, which was not admittedly challenged by the Petitioner.
14. Taking into consideration the fact that the land has been recorded in the name of the Opposite Party Nos.1 to 12 under Stiitiban status, they should not be prevented from enjoying the fruits of the suit property. Any change in the nature and character Page 5 of 6 // 6 // of the suit property shall be subject to the result of the suit. It further appears that learned trial Court although found prima facie case in favour of the Petitioner but has not recorded any finding with regard to balance of convenience and irreparable loss.
15. Since the suit is pending and the application under Order VIII Rule 11 CPC for consideration before the learned trial Court is also pending, this Court refrains itself from making any observation with regard to maintainability the same as well as conduct of the parties which may adversely affect all the parties.
16. Taking into consideration the entire factual backdrop and the submissions made by learned counsel for the parties, I feel that directing the parties to maintain status quo in respect of changing the nature and character of the suit land will not be justified in the facts and circumstances of the case. Accordingly, I find no infirmity in the impugned order.
17. The CMP being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
(K.R.Mohapatra) Judge Prasant Page 6 of 6