Deepak Kumar Mohanty @ Deepak Mohanty vs Headmaster/Headmistress Lalbag Nodal U.P. School, Kaligali, Cuttack And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Judgment dated 5th July, 2023 (Annexure-5) passed by learned 2nd Additional District Judge, Cuttack in FAO No.24 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 24th January, 2023 passed by learned Civil Judge (Junior Division), First Court, Cuttack in IA No.1 of 2022 (arising out of CS No.1091 of 2022), rejecting an application under Order XXXIX Rules 1 and 2 CPC.

Mr. Tripathy, counsel for the Petitioner submits that the Petitioner as Plaintiff has filed the aforesaid suit for permanent injunction against the Opposite Parties. The land belongs to Shri Jagannath Mahaprabhu Bije, Puri Marfat Shri Mandir Parichalana Committee, Puri. The land is in possession of the Petitioner since his ancestors. When the land was put to auction by the Managing Committee of Shri Jagannath Temple Administration, Puri, the Petitioner moved this Court in W.P.(C). No.1325 of 2005, which was disposed of on 29th February, 2008 with the following direction:

“……………in case the petitioner deposits 50% of the entire consideration amount in respect of the land measuring Ac 0.10 dec, Khata no. 601/219, Plot no. 1950 mouza Patapur, Unit no. 14, Narasarak, within 15 days from today, the same shall not be put to auction. Further the petitioner shall pay the balance cost of the land together with other fees if any, by the end of April, 2008, on receipt of which, necessary sale deed be executed in favour of the petitioner in respect of the said land. In the event the petitioner fails to make the deposits within the stipulated period, the benefits of this order shall not be available to him.”

Pursuant to the said direction, the Petitioner deposited a sum of Rs.53,000/- with the Administrator, Shri Jagannath Temple, Puri. But, due to certain doubt with regard to payment of money, internal communication between the petitioner and the Administration went on until 2019. At that juncture, the Opposite Party No.1-Lalbag Nodal U.P. School encroached upon the suit land by demolishing certain portion of the boundary wall. As such, the suit for injunction was filed. It is his submission that admittedly the Petitioner is in possession over the suit property. Communications between the Petitioner and Shri Jagannath Temple Administration is going on with regard to payment of rest auction amount. But the Opposite Party-School does not have any right, title and interest or possession over the suit property. Since the Petitioner is in possession over the suit property, he should not be evicted without following due process of law. Both learned trial Court as well as appellate Court failed to appreciate the same and refused to grant the prayer for injunction. Hence, this CMP has been filed.

Considering the submission made by learned counsel for the Petitioner and on perusal of the case record, it appears that the land in question belongs to Shri Jagannath Temple Administration, Puri. When the land was put to auction, the Petitioner approached this Court in W.P.(C). No.1325 of 2005, which was disposed of on 29th February, 2008 with a direction that if the Petitioner deposits the entire consideration amount in respect of the land measuring Ac.0.10 dec. under Khata No.601/219 and Plot No.1950 of mouza Patapur Unit-14 Nayasarak within 15 days from today the same shall not be put to auction. It was further directed that the Petitioner shall deposit the balance cost of the land together with other fees, if any, by end of April, 2008 on receipt of which necessary sale deed be executed in favour of the Petitioner in receipt of the suit land. While disposing of the writ petition, this Court made it clear that in the event, the petitioner fails to deposit the consideration amount, the benefit of the said order shall not be available to him.

Admittedly, the Petitioner has not yet deposited the entire cost of the land as submitted by Mr. Tripathy, learned counsel for the Petitioner. Thus, the benefit of the order in W.P.(C). No.1325 of 2005 is not available to him. There is no material on record to show that the Petitioner is in possession over the suit property. Further, it is admitted that the Opposite party No.1-School, namely, Lalbag Nodal U.P. School, has encroached upon certain portion of the suit property by demolishing the boundary wall.

In view of the above, this Court is of the considered opinion that the Petitioner does not have any right over the suit property at present. As such, learned trial Court as well as appellate Court has committed no error in refusing to grant order of temporary injunction in favour of the Petitioner.

Hence, this CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

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