Dismissed

Sudam Ch. Sahu v. Anugul United Cent.

Orissa HC21 Jan 2019SA/375/2001

Case brief

AI extract

What is this about?

In this second appeal, the Orissa High Court dismissed the plaintiff's appeal against a confirming judgment. Holding that a cloud existed over the plaintiff's title and they were not in possession, the court ruled that a simple suit for permanent injunction was not maintainable without a prayer for declaration of title. Consequently, the appeal was dismissed.

What did the court decide?

The appeal was dismissed. No costs awarded.

Sudam Ch. Sahu Vs Anugul United Cent. — Property and Title | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.375 of 2001

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From the judgment and decree dated 18.7.2001 and 28.7.2001 passed by Mr.S.K.Nayak, learned Additional District Judge, Angul in T.A.No.1 of 1997/12 of 2001 confirming the judgment and decree dated 1.9.1997 and 18.9.1997 passed by the learned Civil Judge (Jr.Division), Angul in T.S.No.20 of 1988.

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------------Sudam Charan Sahu …. Appellant

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Versus

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The Angul United Central Co-operative Bank Ltd. and others …. Respondents

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For Appellant -- Mrs.Supriya Patra, Advocate For Respondents -- None

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing:10.01.2019 & Date of Judgment:21.01.2019

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Dr.A.K.RATH, J. This is a plaintiffs’ appeal against confirming judgment in a suit for permanent injunction.

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The case of the plaintiffs is that they came to Angul in the year 1944 and purchased Ac.0.12 dec. of land appertaining to Holding No.1/265. There was a dilapidated house on the Government

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land appertaining to sabik plot no.590/683, which corresponds to hal plot no.1267. Plaintiff no.1 repaired the building and occupied the same. Thereafter he constructed the house and used the same as godown and cattle shed to the knowledge of the Government. Plaintiff no.2, his son-in-law, is in possession of the house after plaintiff no.1. While matter stood thus, the Tahasildar initiated Encroachment Case No.86/88-89. The same is sub-judice. The defendants, a Cooperative Bank, had no semblance of right, title and interest over the suit land. But then the defendants created disturbance in their possession on 2.10.1988. With this factual scenario, they instituted the suit.

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The defendants entered contest and filed written statement denying the assertions made in the plaint. According to them, the suit is hit under Section 127 of the Orissa Cooperative Societies Act and Sec.38 of Specific Relief Act. The suit land has been leased out in their favour by the Government in Misc.Case No.314 of 1941-42. The land has been recorded in their favour. The defendants are in possession of the suit land. In order to garb the suit property, the plaintiffs, with the help of R.I., initiated encroachment case.

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Stemming on the pleadings of the parties, learned trial court struck eleven issues. Parties led evidence, oral and documentary. The suit was dismissed. Unsuccessful plaintiffs filed T.A.No.1 of 1997/12 of 2001 before the learned Additional District Judge, Angul, which was eventually dismissed. It is apt to state here that during pendency of the appeal proforma respondent no.3 died.

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The Second Appeal was admitted on the following substantial question of law. The same is :

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“Whether a suit for injunction simplicitor is maintainable without praying for any declaration of title when

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injunction is sought for not against the true owner but against the trespassers?”

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Heard Mrs.Supriya Patra, learned Advocate on behalf of Mr.Bibekananda Bhuyan, learned Advocate for the appellant. None appeared for the respondents.

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Mrs.Patra, learned Advocate for the appellant submitted that learned appellate court committed a manifest illegality in dismissing the suit after coming to the conclusion that “it is true that the evidence of P.Ws. 1 and 2 reveals that they are in possession of the suit land and also receive the support from the written statement filed by the defendants in para 31 of the written statement.” The defendants admitted that the plaintiffs used to tie cow in the damaged house and made temporary thatching. This shows that the plaintiffs are in possession over the suit land. The suit for permanent injunction is maintainable. The defendants are trespassers. To buttress submissions, she places reliance on the decisions of the apex Court in the case of Rame Gowda (Dead) by Lrs. v. M. Varadappa Naidu (Dead) by Lrs. and another, (2004) 1 SCC 769, Ramji Rai and another v. Jagadish Mallah (Dead) through L.Rs. and another, AIR 2007 SC 900, Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs and others, AIR 2008 SC 2033 and this Court in the case of Kalitirtha Kalipuja Committee v. Sri Balunkeswar Mahesh Bije, Attopur (Badasasan), 2017(I) ILR-Cut-303.

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The apex Court in Anathula Sudhakar held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for

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possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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On an anatomy of the pleadings and evidence on record, learned appellate court came to hold that the suit land belongs to the Government. Ext.B, the order passed in the mutation case, shows that the land was allotted in favour of the bank in the year 1941-42. In the R.O.R., Ext.A, the note of possession of the defendants has been reflected. Exts. A & B taken together shows that the defendants were in possession of the suit land. The same belongs to them. Both parties claimed possession over the suit land. The defendants claimed title over the suit land. Without declaration of title, mere suit for permanent injunction is not maintainable. There is no perversity in the findings of the courts below.

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A cloud is raised over the plaintiffs’ title. They are not in possession over the suit land. The plaintiffs’ title is in dispute. In view of the same, the simple suit for permanent injunction is not maintainable. The substantial question of law is answered accordingly.

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In Rame Gowda, the apex Court quoted with approval the earlier decision in the case of Nair Service Society Ltd. v. K.C.Alexander, AIR 1968 SC 1165 and held that “Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)”. “A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and thus be able to raise a presumption prior in time.” There is no quarrel over the proposition of law.

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Ramji Rai is of no help to the plaintiffs. The apex Court held that an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights. In the suit for permanent injunction restraining the defendants from interfering with the possession of land in dispute, the plaintiffs fail to prove that they are in possession, the suit is liable to be dismissed only on that ground. In the instant case, the plaintiff has no title over the suit land. The defendants claim title over the land. Both parties claim that they are in possession of the land. In Kalitirtha Puja Committee, this Court relied upon Anathula Sudhakar.

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