Allowed

Joginath Khatua v. Bira Khatua

Orissa HC19 Jan 2016FAO/35/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the rejection of an injunction application. The Court held that a plaintiff need not prove title to the hilt for an injunction and that a person in possession, even if a trespasser, can restrain interference by others until due process of law is completed.

What did the court decide?

Impugned order set aside; defendants restrained from interfering with plaintiff's possession until disposal of the suit.

Joginath Khatua Vs Bira Khatua — Property and Title | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK

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FAO NO.35 OF 2009

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From the Order dated 25.10.2008 passed by the learned Civil Judge (Senior Division), Athagarh in I.A. No.11 of 2008 arising out of C.S. No.(i)-19/08.

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------------Joginath Khatua …… Appellant -VersusBira @ Birabara Khatua and others …… Respondents

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For Appellant : M/s. Bidhayak Pattnaik, B.B.Rath, P.B.Rath, S.K.Swain & B.Rath

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For Respondents : S.S.Das, Senior Advocate

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M/s. K.Behera, S.Modi, P.K.Ghose, S.S.Pradhan, S.Mishra

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-----------------------------Date of Order: 19.01.2016

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P R E S E N T:

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THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA

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K.R. Mohapatra, J. Order dated 25.10.2008 passed by the learned

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Civil Judge (Senior Division), Athagarh in I.A. No.11 of 2008 rejecting an application under Order 39 Rules 1 and 2, CPC filed by the plaintiff is under challenge in this appeal.

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Civil Suit No.(I)-19/08 was filed for declaration of

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right, title, interest and possession over the suit land as well as for permanent injunction. Appellant as the plaintiff contended that the suit land, i.e., plot No.562 appertaining to

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Khata No.288 in Mouza Kandhabareni measuring an area of Ac.0.64 decimal in the district of Cuttack is a piece of government land. The plaintiff occupies the suit land constructing his residential house from the day of Baisakhya Purnima, 1973 openly, uninterruptedly and peacefully to the knowledge of the true owner. Due to such occupation, Encroachment Case No.7/05-06 was initiated against him by the Tahasildar Narsighpur which was culminated in imposing penalty of Rs.100/- as well as assessment dues of Rs.100/- on the plaintiff. However, the plaintiff continued to possess the suit land without any interruption. The defendants/ respondents who are some of the co-villagers having a greedy eye over the suit land created disturbance in the possession of the plaintiff. They threatened to set fire to the residential house of the plaintiff and demolish foundation the plaintiff had laid to construct a pucca building. Thus, finding no other alternative, the suit was filed for the aforesaid relief. Along with the plaint, he filed the aforesaid I.A. to restrain the defendants/ respondents from entering upon the suit land and from creating disturbance in the peaceful possession of the plaintiff. Defendants-respondents filed their objections denying the allegation made in the I.A. They contended that plot No.559 situates adjacent to plot No.562, which is being encroached by the plaintiff. The villagers decided to construct an Anganwadi

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Kendra of Village Kandhabareni over the said plot of land and accordingly after obtaining permission from the Tahasildar, Narsinghpur Anganwadi Centre was constructed over plot No.559. The plaintiff in order to grab plot No.559 along with plot No.562 (suit plot) filed the suit falsely alleging that the answering defendants/ respondents were creating disturbance over the suit land. They further submitted that the plaintiff has no cause of action and the suit is not maintainable. Further, balance of convenience does not lean in favour of the plaintiff. Since the suit plot belongs to the Government, the plaintiffappellant would not sustain any irreparable loss or injury if the order of injunction is refused. Accordingly, they prayed for dismissal of the I.A.

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Taking into consideration the rival contentions of the parties, learned Civil Judge passed the impugned order.

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Heard Mr.Bidhayak Pattnaik, learned counsel for the appellant and Mr.S.S.Das, learned Senior Advocate for the respondents. Mr.Pattnaik strenuously urged that the learned Civil Judge did not at all consider the vital ingredient for grant of an order of temporary injunction. Learned Court below has committed gross error in holding that the plaintiff/appellant

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failed to prove prima facie title over the suit land. Law is wellsettled that a plaintiff has to show a prima facie case and not prima facie title for grant of an order of injunction. Moreover,

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this Court has consistently held that where a party raised bona fide title over the suit land, the same cannot be decided in a summary proceeding under the provision of OPLE Act. In such a situation, the Civil Court has jurisdiction to entertain the suit and grant proper relief relating to title as well as consequential reliefs. He further contended that the party seeking injunction need not prove his case to the hilt, but has to show a prima facie case or a fair question to be raised at the time of trial. Thus, finding of the learned Trial Court that the petitioner/appellant has no right and title over the suit land as because it is a government land in the status of ‘Rakhita Bagayat’, is not sustainable in the eye of law. Further, learned Civil Judge has not made any discussion on the ingredient of irreparable loss and balance of convenience. Thus, he prayed for setting aside the impugned order and to grant the relief claimed in the I.A.

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Mr.Das, learned Senior Advocate for the respondents on the other hand strenuously urged that the plaintiff has filed a suit claiming title over the suit land by way of adverse possession. Relying upon a recent decision of the Hon’ble Supreme Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala , reported in (2014) 1 SCC 669, Mr.Das submits that the plea of adverse possession can only be used as a shield but not as sword. The plaintiff cannot

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maintain a suit claiming title through adverse possession over the suit land, which is a piece of government land. He further submits that the plaintiff is creating immense disturbance in functioning of the Anganwadi Centre. Thus, he contended that the learned Civil Judge has rightly considered the application and after discussing the contentions of parties and point of law involved dismissed the application, which needs no interference.

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On perusal of the impugned order, it appears that the learned Civil Judge has opined in definite terms that though the prima facie case regarding adverse possession is revealed from the petition, but it appears that the appellant/plaintiff has no right, title and interest over the suit land as because it is a government land in the status of ‘Rakhita Bagayat’. He also observed that the plaintiff is in continuous and uninterrupted possession over the suit land from the date of Baisakhya Purnima, 1973. Encroachment case initiated by the Tahasildar against the plaintiff in the year 2005 was decided against which the peitioner preferred Encroachment Appeal, which was remanded by the SubCollector, Athagarh, to the Tahasildar, Narsinghpur for fresh adjudication. It is trite law as held in the case of State of Orissa Vs. Bhanu Mali (dead), Nurpa Bewa and others , reported in 1996 (1) OLR 460, which was subsequently

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followed in the case of State of Orissa, through Collector, Sundargarh and another Vs. Daitari Sahu and others , 2007 (1) OLR 52 that where a party raises bona fide issue claiming of title over the suit property, the same cannot be adjudicated in a summary proceeding under the provisions of OPLE Act and in such a situation, the Civil Court would have jurisdiction to entertain the suit and grant appropriate relief relating title of the party and other consequential reliefs. To establish a prima facie case, the party seeking injunction is not required to prove his case to the hilt. He has only to establish that he has made out an arguable case or a fair question to be raised in the trial of the suit, which is sufficient to establish a prima facie case. Learned Trial Court while discussing the case of the parties, opined that on perusal of the plaint, it is found that the plaintiff has in continuous and uninterrupted possession of the suit land from the day of Baisakhya Purnima in the year 1973. He further held that the pleadings of the petition also make out prima facie case regarding adverse possession. However, holding that the plaintiff has no right, title and interest over the suit land as because the suit land belongs to the government in the status of ‘Rakhita Bagayat’, learned Civil Judge disbelieved the case of the plaintiff. As held in the case of Smt. Nisamani Behera Vs. State of Orissa

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and others , reported in 2001 (1) OLR 625 for establishing a

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prima facie case, the plaintiff is not required to prove its case to the hilt. When an arguable case is made out that is sufficient for establishing a prima facie case. Thus, this Court unhesitatingly held that the plaintiff has an arguable case which requires the fair trial. Initiation of encroachment case against the plaintiff indicates that he is in possession over the suit land. Moreover, occupation of the suit land by the plaintiff by constructing a residential house thereon is not disputed by the defendants. The defendants do not also claim eviction of the plaintiff from the suit land at any point of time. When the plaintiff is enjoying the suit land by construction his residential house, his possession should be protected unless he is evicted in due process of law. There is nothing on record which discloses that any proceeding for eviction is pending against the plaintiff. Thus, he would suffer irreparable loss if the defendants enter into the suit land and/or interfere with his possession. Moreover, in view of the discussions made above, balance of convenience leans in favour of the plaintiff. As it appears from the submission of Mr.Das, learned Senior Advocate for the respondents that the defendants claimed that they are occupying plot No.559 which is adjacent to the suit plot and an Anganwadi Centre has been constructed over the same. There is nothing on record which would reveal that usage of plot No.559 would be affected in any manner if the

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order of injunction as prayed for is granted in respect of the suit land. Mr.Das, in course of argument, contented that the State is the true owner of the suit land who is not made a party to the petition under Order 39 Rules 1 and 2, CPC. Hence, the I.A. is not maintainable for non-joinder of necessary parties. Mr. Pattnaik stoutly refuted such contention submitting that the State Government has been made a party to the suit. Further, the State Government is neither interfering with his possession over the suit land nor there is any threat from the State of Odisha or its machineries to that effect. Moreover, no proceeding for his eviction has yet been initiated by the true owner. As such, State of Odisha is neither necessary nor a proper party to the I.A. He further submitted that a rank trespasser can also claim for injunction against another who interferes with his possession. This Court finds force in the contention of Mr.Pattnaik to the effect that a rank trespasser is entitled to protect his possession till he is evicted in due process of law.

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In that view of the matter, the impugned order is not sustainable in the eye of law and accordingly the same is set aside. The defendants are restrained from interfering with the possession of the plaintiff over the suit land till disposal of the suit. This being a suit of the year 2008, learned Civil Judge shall do well to dispose of the same as expeditiously as

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possible and the parties to the suit are directed to cooperate for

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disposal of the suit.

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