Allowed

Katipoini Bhusanam v. Ganapati

Orissa HC13 Sept 2017SA/177/1988

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, holding that the suit for permanent injunction was not maintainable. The court found the description of the suit plot in the plaint to be vague and ambiguous, failing to satisfy Order 7 Rule 3 CPC requirements for identifying immovable property. Consequently, the decree of the lower courts was unsustainable and the appeal was allowed. No cost was awarded.

What did the court decide?

The second appeal was allowed; the suit failed; no decree for permanent injunction could be sustained.

Katipoini Bhusanam Vs Ganapati — Property and Title | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK

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SA No.177 of 1988

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From the judgment and decree dated 25.03.1988 and 07.04.1988 respectively passed by Shri M.R. Behera, learned Additional District Judge, Berhampur in T.A. No. 36/87(81/86) confirming the judgment and decree dated 18.09.1986 and 01.10.1986 respectively passed by Mr. B.N. Jena, learned Munsif, Berhampur in T.S. No. 15 of 1980.

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Katipoini Bhusanam and another …. Appellants Versus Ganapati Bisoi …. Respondent

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For Appellants … Mr. Dayananda Mohapatra, Adv. For Respondent … None

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing & judgment: 13.09.2017

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Dr. A.K.Rath, J Defendants are the appellants against confirming judgment in a suit for permanent injunction.

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02. Respondent as plaintiff instituted T.S. No. 15 of 1980 in the court of the learned Munsif, Berhampur for permanent injunction impleading the appellants as defendants. The case of the plaintiff is that he is in possession of the suit land and using it as back yard of his house for the last fifty five years. The defendants were residing in his house on rent. When they attempted to trespass into the suit land, he instituted the suit seeking the reliefs mentioned supra.

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03. The case of defendant no.1 is that the suit land belongs to N.C.C. Department. The same was vacant. It was not the back yard of the plaintiff’s house. The plaintiff had no house of his own to the east of the suit land. Laxmi, mother-in-law of defendant no.1 encroached upon the suit land about thirty years ago and constructed houses. She constructed a cowshed over the suit land. The defendants are residing with her.

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04. On the inter se pleadings of the parties, the learned trial court struck four issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court held that the plaintiff has right, title and interest over the suit plot. He is in possession of the same. Held so, it decreed the suit. The unsuccessful defendants filed an appeal in the court of the learned Second Additional District Judge, Berhampur, which was which was subsequently transferred to the court of the learned Additional District Judge, Ganjam and renumbered as T.A. No. 36/87 (81/86). The appeal was eventually dismissed.

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05. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground nos.4 & 5 of the appeal memo. The same are:“4. For that the learned courts below have committed error of law in passing a decree for injunction which is unexecutable in as much as from the description of the suit land as given in the plaint it clearly transpires that the location of the suit site as stated in the suit schedule is vague and ambiguous and it has not been stated with any definite and clear precision as to which particular plot or survey number the suit land appertains to and in that view of the matter the decree passed by both the learned courts below suffers from uncertainty and are unexecutable ?

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For that the learned courts below have committed a serious illegality in misconstruing the findings given in the commissioner’s report in as much as according to the report submitted by the Commissioner the suit land appertains to Survey No.457 and 459 and not Survey No.458. The learned courts below have illegally placed reliance on Ext.4, i.e. the order passed in an Encroachment proceeding in respect of plot no.458 and Exts.1, 2 and 3 i.e. cist receipts as well as holding tax receipts though the same relates to some other lands and not the suit land and as such the findings and reasonings given by the learned courts below are based on surmises and conjectures and are replete with errors of records ?”

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06. Heard Mr. Dayananda Mohapatra, learned counsel for the appellants. None appears for the respondent.

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07. Mr. Mohapatra, learned counsel for the appellants submits the suit schedule property is unspecific and vague. No decree for permanent injunction can be passed. He further submits that an Amin Commissioner was deputed. He submitted a report. The Commissioner’s report reveals that the suit land appertains to survey nos.457 and 459 and not survey no.458. Learned courts below committed a serious illegality in placing reliance on same.

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08. Plaintiff has described the suit plot as “vacant site situated at northern row canal mudda street, Gandhinagar, Mouza Alakapur Berhampur town, East to west-40 cubits, north-south-17 cubits”.

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09. Order 7 Rule 3 CPC postulates that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

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10. The suit plot is not identifiable. The description of the suit plot is vague. Thus the suit for permanent injunction is not maintainable. The substantial questions of law are answered accordingly.

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11. In the result, the suit must fail. The appeal is allowed. No cost.

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Orissa High Court, Cuttack.

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The 13^th September, 2017/ Puspanjali

Katipoini Bhusanam v. Ganapati

Case brief

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Katipoini Bhusanam v. Ganapati

Case brief

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