Minati Sahoo vs Baishnab Raut and Another

P.K. Patra, J.—This Miscellaneous Appeal under Order 33, Rule 1 (r) of the CPC (for short ''CPC'') is directed against the order dated 10-4-2001 in Misc. Case No. 23 of 2001 arising out of Title Suit No. 3 of 2001 passed by the Civil Judge (Senior Division), Bhubaneswar rejecting the prayer for temporary injunction under Order 39, Rules 1 and 3 read with Section 151, CPC.

Appellant is the plaintiff in the suit. She filed the suit for declaration of her title, confirmation of her possession and permanent injunction in respect of the disputed homestead land meansuring Ac. 0.250 decimals out of a total area of Ac. 2.322 deciamals appertaining to plot No. 6, Khata No. 191 of Mouza Chandrasekharpur, district-Khuda. She prayed for temporary injunction against defendant-respondent Nos. 1 and 2 till the disposal of the suit alleging that they were trespassers. Defendant Nos. 3, 4 and 5 are the vendors who sold the suit land to the plaintiff, vide registered sale deed Nos. 4279 dated 28-10-1998 and 5762 dated 29-12-2000 and delivered possession of the same.

As per the plaint averments, the Raja of Patia was the owner of the lands described in the schedule to the plaint which included the suit land. One Tilotama Samal, wife Dhanurdhar Samal was the lessee in respect of lands measuring Ac. 1.80 decimals appertaining to plot No. 5 of Khata No. 58 and Ac. 2.320 decimals appertaining to plot No. 6/1939. After vesting of the estate of the Raja of Patia, Tilotama applied to the Tahasildar, Cuttack Sadar to record the lands in her favour u/s 8(1) of the Orissa Estates Abolition Act O.E.A Case No. 75 of 1959-60 and she was possessing the same till her death. Defendant Nos. 3,4 and 5 obtained legal heir certificates from the Tahasildar, Bhubaneswar in Misc.Case No. 41 of 1992 and continued to possess the lands and pay rent to Government. To meet their legal necessities they sold the suit land to the plaintiff who raised compound- wall thereon. It is alleged that defendant Nos. 1 and 2, without any right, title, interest or possession over the suit land, damaged the compound --wall and started construction over the suit plot. Protest by the plaintiff did not yield any result. Hence, the suit.

Defendant Nos. 1 and 2 filed their joint written statement in the suit. According to them, the plaintiff having no right, title, interest of possession over the suit land has no locus standi to file the suit against defendant Nos. 1 and 2, who are the agents of the rightful owner of the suit land. As per the averments in the written statement, one Tilotama Samal of village Diha Balarampur under Patkura police station in the district of Kendrapara was the rightful owner of the suit land and Sarat Chandra Biswal, Adikanda Patra, Samahita Bal, Saswat Bal, Satyanarayani Jena and others purchased the suit--land and other lands from her and the said purchasers have entered into an agreement for same with one Saubhagya Kumar Misra, the Managing Director of Aradhana Property Development (P) Ltd. and have also executed a power -of-attorney to deal with the lands. Defendant Nos. 1 and 2 are thus the authorised agents of the aforesaid firm to develop the suit land to the extent of Ac. 1.160 decimals out of plot No. 6 of Khata No. 91. At the instance of mischievous persons of the village, defendant Nos. 3,4 and 5 created false and fabricated sale deeds by impersonating Tilotama Samal and at their instance the plaintiff has filed the suit for illegal gains. It is further stated that Tilotama Samal, wife of Dhanurdhar Sama! of village Diha Balarampur was Khandayat by caste and she along with one Uchhab Sahu, son of Basu Sahu of village Damana took lease of agricultural lands measuring Ac.8.018 decimals appertaining to plot Nos. 5 and 6 of Khata No. 1 of village Chandrasekharpur from Raja Madhusudan Deo of Patia and both of them remained in possession of the said lands duly paying rent to the Patia estate. Subsequently when the Raja of Kanika became the proprietor of Patia estate, rent was paid to him . After vesting of Patia estate with Government in 1952, said Tilotama Samal and Uchhab Sahu were recognised as tenants in Vesting Case No. 3176 of 1959-60 by the Tahsildar, Sadar Cuttack after proper enquiry. But in 1973 Settlement, the said two plots were recorded in the name of the State against which Uchhab Sahu filed Settlement Revision Case No. 3176 of 1975 before the Board of Revenue, Orissa in respect of his land measuring Ac. 4.50 decimals appertaining to Hal Plot No. 309 and also for the land jointly belonging to him and Tilotama Samal which was recorded under Hal Khata No. 472 . According to the defendants, since said Tilotama Samal was not available, uchhab Sahu had to file the case on behalf of both of them. In the last Settlement, the lands were recorded separately in the names of Uchhab Sahu and Tilotama Dei, vide Objection Case No. 7040. Plot No. 6/1939 of Hal Khata No. 50 measuring Ac. 2.320 decimals and Hal Plot No. 5 measuring Ac. 1.190 was recorded in the name of Uchhab Sahu and Plot No. 6 of Hal Khata No. 191 measuring Ac. 2.320 decimals and Hal Plot No. 5/1938 measuring Ac. 1.790 decimals were recorded in the name of Tilotama Dei in the year 1989. Defendant Nos. 3 to 5 are not the legal heirs of Tilotama Samal, wife of Dhanurdhar Samal of Patkura police station in the district of Cuttack and hence they have no right to alienate any part of the land belonging to said Tilotama Samal. Tilotama Samal died on 19:3-1992 at Cuttack leaving behind her four sons as her heirs On 11-10-1985 Tilotama had alienated Ac.1.160 decimals of land appertaining to Hal plot No. 6 in favour of Sarat Chandra Biswal, Saswati Bal, Sambit Bal, Adikanda Patra, Priyadarson Das and Siprarani Jena and they got their lands mutated in their names, Tilotama Samal also alienated Hal Plot No. 5/1938 in the year 1987 in favour of some persons who have got their names mutated. Defendant Nos. 3 to 5 preferred Mutation Appeals bearing numbers 25/93 to 30/93 against the mutation cases being allowed in favour of the six purchasers named above, but all the appeals were dismissed. After that, defendant Nos 3 to 5 fabricated false documents in order to grab the property recorded in the name of Tilotama Samal and they falsely claimed to be the legal heirs of Tilotama Samal, being the sons of Nata Samal, Younger brother of late Dhanurdhar Samal. Defendant Nos. 3 to 5 were "Gola'' by caste and not ''Khandayat'' having title as ''Sasmal'' whereas the real owner Tilotama was ''Khandayat'' by caste. On the above grounds, the defendants prayed for dismissal of the suit . They also filed their objection to the petition for temporary injunction.

Shri B.H. Mohanty, learned counsel for the appellant, and Shri B.C.Swain, learned counsel for the respondents, were heard at length. Both of them stretched their arguments to a great length by referring to plethora of documents filed in the lower court in support of their respective contentions.

According to Mr. Mohanty, the learned Civil Judge (Senior Division) erred in rejecting the prayer of the plaintiff-appellant for grant of temporary injunction against defendant-respondents Nos. 1 and 2, in as much as the plaintiff appellant had been able to show existence of a prima facie case, balance of convenience in her favour and irreparable loss she is likely to suffer. Shri Swain vehemently refuted the contention of Shri Mohanty. According to, Shri Swain, Tilotama Samal, wife of Dhanurdhar Samal of village Dama was ''Gola'' by caste and she was never a lessee under the Raja of Patia and that documents relating to lease, death certificate of Tilotama Samal granted by Bhubaneswar Municipality and the legal heir certificate granted by the Tahasildar have been fabricated for the purpose of grabbing the land in dispute and, as such, their is no prima facie case in favour of the plaintiff. Besides, the balance of convenience is not in her favour and she will not suffer any irreparable injury in case of refusal of temporary injunction against defendant respondent Nos. 1 and 2. On the other hand, Shri Mohanty argued with vehemence that Shri Swain, learned counsel for defendant-respondent Nos. 1 and 2, was the brain behind to fabricate the documents with a view to grab the suit-property, in as much as he has executed the sale deeds as power-of-attorney holder of into Tilotama Samal, stated to be his natural mother and had obtained the death certificate of Tilotama Samal from Cuttack Municipality after a long lapse of time. It was also alleged that orders of some authorities have been interpolated to show that Tilotama Samal was a resident of Diha Balarampur under Patkura police station, and not a resident of village Damana or Chandrasekharpur under Chandrasekharpur police station. When Shri Mohanty contended that village Damana is also known as Chandrasekharpur, Shri Swain refuted the same contending that Chandrasekharpur and Damana are two different villages. In other words, there is serious dispute regarding authenticity of the documents produced by the parties in respect of their respective contentions. At this stage, authenticity of the documents produced in court cannot be ascertained which can only be done at the trial stage. Suffice to say, both the parties claim right, title and interest over the disputed land.

Learned Civil Judge (Senior Division ) has rejected the prayer for temporary injunction on the ground , amongst others, that the disputed land has not been properly identified. But it is apparent from the facts of the case as averred in the plaint and the written statement that M/s. Aradhana Property Development (P) Ltd. has undertaken construction of a big housing complex on the lands appertaining to different plot and also the disputed Ac.0.250 decimals of land. Admittedly, defendant-respondent Nos. 1 and 2 are agents of the said builders. There is no doubt that multi-storeyed buildings will come up on the adjacent lands as well as on the disputed land. If the defendant-respondents are not restrained and are allowed to proceed with the construction work and if the suit is decreed, the plaintiff will not be able to recover vacant possession of the suit land; whereas the defendants can continue the construction work over the adjoining lands acquired for the purpose leaving the suit lands vacant till the disposal of the suit. Learned counsel for both the parties placed reliance on several decisions which practically deal with the principles governing injunction.

The case Re. Dalpat Kumar and another Vs. Prahlad Singh and others, will guide the determination of the present case. Relating to "Prima facie case", it has been hold :

" Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is " a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prime facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and decision on merits, Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction."

Regarding" irreparable injury", the Apex Court

" The court further has to satisfy that noninterference by the court would result in " irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility or repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages."

Regarding the third condition, i.e.'' balance of convenience." the Court held ;

"The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted . If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued."

In the present case, as discussed earlier, number of documents have been filed by both the sides in support of their respective contentions. Authenticity of those documents can be considered at the trial and not before that. At this stage it is to be held that there is a prima facie case in favour of the plaintiff-appellant. The plaintiff--appellant will also suffer irreparable injury if the defendant-respondents are not restrained from making construction over the disputed land, in as much as she cannot be adequately compensated by way of damages in case she succeeds in the suit. The mischief or inconvenience which is likely to be caused to the plaintiff--appellant will be more than to the defendant--respondents, in case temporary injunction is refused, in as much as the defendant--respondents would construct multi-storeyed building on the suit land and the adjoining lands and it will be difficult on the part of the plaintiff-appellant to get vacant possession of the disputed land. In case temporary injunction is granted, the defendant-respondents will not face much inconvenience since they can very well proceed with the construction work on the adjoining lands and would be able to take up construction work on the disputed land in case the suit is dism issed and no relief is granted to the plaintiff-appellant. In the facts and circumstances, it will be expedient to direct maintenance of status quo in respect of the suit land. Accordingly, the plaintiff--appellant''s prayer for temporary injunction is to be disposed of with direction to both sides to maintain status quo of the disputed land until disposal of the suit.

In the result, the Miscellaneous Appeal is disposed of on contest. The impugned order dated 10-4-2001 passed by the Civil Judge (Senior Division), Bhubaneswar in Misc. Case No. 28 of 2001 arising out of Title Suit No. 3 of 2001 is set aside. Both sides are directed to maintain status quo with respect to the suit land till disposal of the suit.

Learned counsel for the defendant-respondents made a submission that the court below may be directed for early disposal of the suit, which would be in the interest of the parties. The submission is very fair. Therefore, the learned Civil Judge (Senior Division) is directed to dispose of the suit as expeditiously as possible, preferably within a period of six months from the date of receipt this order. Both sides are directed to cooperate with the Court for early disposal of the suit. No costs.

Send a copy of this order to the Civil Judge (Senior Division), Bhubaneswar along with the lower court records immediately.

Misc. Appeal allowed.