Orissa High Court
Antaryami Dalabehera vs Bishnu Charan Dalabehera on 18 April, 2002
Equivalent citations: 2002(I)OLR531
Author: Pradip Mohanty
Bench: Pradip Mohanty
JUDGMENT Pradip Mohanty, J.
1. The petitioner filed this revision challenging the order dated 20.7.2000 passed by the learned District Judge, Phulbani, in Misc. Appeal No. 8 of 1999 by which the appellate Court below has set aside the order dated 6.4.1999 passed by the learned Civil Judge (Junior Division), Phulbani, in M.J.C. No. 4 of 1999 arising out of T.S. No. 5 of 1994.
2. The petitioner is the defendant and the opposite party is the plaintiff.
The opposite party-plaintiff filed Title Suit No. 5 of 1994 in the court of the Civil Judge (Junior Division), Phulbani, praying for declaration of right title and interest in respect of plot No. 891 of Khata No. 110 for permanent injunction restraining the defendant-petitioner from disturbing the peaceful possession of the disputed land measuring 28' x 4'.
3. The case of the plaintiff-opposite party, as it transpires from the plaint, is that, his grand-father Bhaskar Dalabehera was the recorded tenant in 1922 Record-of-Rights in respect of Sabik Plot No. 560 measuring Ac 0.1 decimal and plot No. 561 measuring Ac. 0.11 decimals (total Ac. 0.12 decimals) in Sabik Khata No. 25 which corresponds to major settlement plot No. 891 with an area measuring Ac. 0.83 R. of Khata No. 110 of 1976 major settlement. In 1976 Record-of-Rights, opposite party's father Laxman Dalabehera was recorded as tenant and after his death, the opposite party has been continuing in peaceful possession of the suit land and paying rent to the Revenue Authority.
The petitioner-defendant filed his written statement stating therein that the suit is grossly under-valued and the further case of the defendant is that, the plaintiff had no connection over the suit land at any point of time. His further case is that, his grandfather Panchu Dalabehera was the recorded tenant, in respect of Sabik Plot No. 558 comprising an area of Ac. 0.10 decimals and Sabik plot No. 559 for an area of Ac. 0.02 decimals under Sabik Khata No. 20. The same was reflected in the R.O.R. of 1922 Settlement.
Further, the land corresponds to 1976 major settlement R.O.R. being Plot No 892 measuring Ac. 0.75 R. and Plot No. 892/17.0 measuring Ac. 0.20 R. (Total Ac.0.95 R.) under M. S. Khata No. 64 recorded in favour of Pandaba Dalabehera. His specific plea is that the suit land being Sabik Plot No. 891 of 1922 R.O.R., the sante has no connection with the land of the defendant and has been harassed by the plaintiff by filing the present suit.
4. His further case is that, in Demarcation Misc. Case No. 2375 of 1992, the Tahsildar has demarcated the area and in a proceeding under Section 145 Cr.P.C. registered as Misc. Case No. 9 of 1993 the present petitioner has been declared to be in possession of the suit land. Thereafter, the plaintiff-opposite party alongwith the title suit, filed an application under Order 39, Rules 1 and 2 CPC being M.J.C. No. 6 of 1994 for grant of injunction against defendant which was dismissed on 5.8.1996 as the same was not pressed. The plaintiff also filed an application dated 10.11.1995 under Order 26, Rule 9 CPC with a prayer to depute a Survey knowing Commissioner to demarcate the land of the petitioner-defendant along with the land of the opposite party-plaintiff for proper appreciation of the location of the suit land.
5. Since the opposite party-plaintiff started disturbing the possession by putting wooden fence, the petitioner-defendant filed M.J.C. No. 2 of 1996 under Order 39, Rule 1 CPC with a prayer to direct the plaintiff to remove the fence. The trial Court on 1.7.1996 has been pleased to pass an order to maintain status quo of the suit land till receipt of the report of the Survey knowing Commissioner.
It is worth-while to mention here that the Survey knowing Commissioner submitted his report dated 11.5.1998 along with enclosures 1, 2 and 3 (sketch maps) and the same has been accepted by the learned Civil Judge (Junior Division) on 11.9.1998. The Survey knowing Commissioner in his report accepted the possession of the suit land by the defendant so also the report of the Revenue Supervisor in Demarcation Case No. 2375 of 1992.
6. While this was the position, it is alleged that again the plaintiff on 30.1.1999 raised another wooden fence at the back side enclosing 3' x 30' passage adjoining the back side wall of the defendant towards his Bari, despite the order of the trial Court dated 1.7.1996 granting status quo. Therefore, the defendant filed another application under Order 39, Rules 1 and 2 CPC being M.J.C. No. 4 of 1999 seeking for an order of restraint against the plaintiff not to interfere with his peaceful possession. The plaintiff-opposite party filed objection in the said M.J.C. No. 4 of 1999. Considering the facts and circumstances of the case, the trial Court allowed M.J.C. No. 4 of 1999 vide order dated 6.4.1999 and directed the plaintiff to remove the wooden fence raised on the disputed land and further directed not to interfere with the peaceful possession of the defendant, over the suit land till disposal of the suit.
7. Being aggrieved by the said direction and order, plaintiff preferred appeal before the District Judge, Phulbani being M.A. No. 8 of 1999. The learned District Judge, after hearing the parties, set aside the order dated 6.4.1999 passed in M.J.C. No. 4 of 1999 by the learned Civil Judge (Junior Division).
8. Mr. Sarangi, learned counsel for the petitioner, submits that the appellant court below having not appreciated the facts in its proper perspective has set aside the order passed by the trial Court and thereby committed irregularity and illegality and gross error apparent on the face of the record. Therefore, according to him, this Court should interfere by exercising revisional jurisdiction and restore the order passed by the trial Court.
Mr. Pradhan, learned counsel appearing for the opposite party, argued that there is no such irregularity or illegality in the finding of the appellate court below and the present petition is liable to be dismissed. He further submits that the petitioner has filed this case only to linger the proceeding of the Title Suit No. 5 of 1994.
9. After hearing the learned counsel for the parties and taking into consideration, the orders passed by the courts below, this Court, is of opinion that, the triat Court after being satisfied that there is a strong prima facie case in favour of the present petitioner-defendant and that the opposite party-plaintiff has forcibly tried to disturb the possession of the petitioner by putting wooden fence, passed the interim order. But, on the other hand, the appellate Court while setting aside the order of the trial Court arrived at a conctusion that the opposite party-plaintiff shall suffer irreparable loss if the order of the trial court regarding removal of fence is allowed to operate. At the same time, the appellate Court kept the finding of the trial Court regarding use of the disputed land as passage, in fact. Further more, the appellate Court has held that as per the report of the Survey knowing Commissioner the disputed land also forms a part of the road. Most important is that there is nothing in the order of the appellate Court to negative the finding of the trial Court that the wooden fence was put during the pendency of the suit and the petitioner is in possession of the disputed land.
10. In order to give a decision with the scope of Order 39, Rules 1 and 2 CPC for interim injunction, law is well settled that the petitioner should establish that, there is a prima facie case; that means, the petitioner need not fulfil his case on merits at the stage of hearing on an application for injunction, but it would be sufficient for him to show that he has a fair question to raise as to the existence of his right till the question is riped for trial/disposal of the case. Then he should prove irrepairable injury. Irrepairable injury means, such injury which cannot be adequately remedied by damages; and the last ingredient is, balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted.
11. As it appears, the opposite party-plaintiff has brought the original suit claiming his title over an area of 28' x 4' out of the plot No. 891 which is admittedly recorded in his name. Plot No. 892 and Plot No. 892/1740 admittedly belong to the petitioner-defendant and it situates adjacent to the suit plot. The disputed strip of land is located in between the respective plots of both the parties. In the case at hand, the learned Civil Judge (Junior Division) had deputed an Amin Commission for local investigation of the suite site and the Commissioner has submitted his report which has been accepted by the trial Court. Prior to that the petitioner has filed M.J. C. No. 2 of 1996 making a similar prayer against the opposite party which has been disposed of on contest on 7.1.1996. in which the trial Court directed both the parties to maintain status quo of the suit land till receipt of the report of the Survey knowing Commissioner, the report of the Commissioner indicates that the disputed strip of land does not form part and parcel of Sabak plot of either of the parties. The same disputed land forms part of a vacant space which is recorded as 'Village Danda' in the settlement map of 1922-23. When both parties lay their lawful claim over the disputed land, title thereto can be adjudicated only after a full length hearing of the suit. Be that as it may, on consideration.of the facts and circumstances of the case, this Court feels that the petitioner has a strong prima facie case.
Coming to the question of balance of convenience, the opposite party contends that he is using the disputed land as the main passage to his house from the public road. The photographs of the disputed site was produced before the trial court basing upon which the learned Civil Judge (Junior Division) observed that the site has been blocked by wooden fence close to the pucca house constructed by the petitioner. Now it is alleged by the petitioner that the opposite party has also removed soil from near the foundation of his building. The learned Civil Judge has rightly observed that the allegation of the petitioner appears probable because of the fact that by raising the wooden fence forcibly, the opposite party appears to have kept the disputed land in his exclusive possession during the pendency of the suit. The learned counsel for the petitioner has rightly contended that if he removes soil from near the foundation of the building, the safety of the building will be at stake. In this view of the matter, the contention of the learned counsel for the opposite party that he is using the vacant space in question as passage to his house is found to be prima facie incorrect.
12. Considering the facts of the case of both the parties, as the possession is in dispute, which will be adjudicated in the suit, in my opinion, none of the parties should be allowed to change the nature and character of the suit land during pendency of the title suit. The appellate court has failed to appreciate the above facts and law and went into the merits of the suit as if deciding finally upon the rights of the parties. Hence, the order of the appellate court fails to withstand the scrutiny of this Court and is liable to be set aside.
While setting aside the order of the appellate Court, the opposite party-plaintiff is directed to remove the wooden fence forthwith from the suit land. It is further directed that both the parties will maintain status quo in respect of the suit property till conclusion of the trial. In the event any repair to the building is necessary, the petitioner* defendant shall do the same after intimating the trial Court regarding the extent of repair.
The Civil revision is accordingly disposed of.