Prabhat Kumar Baksi vs Swarnaprava Das & Others

Ananda Chandra Behera, J

This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the impugned order dated 11.03.2024 passed in I.A. No.13/2024 arising out of C.S. No.37/2024 by the learned Senior Civil Judge, Sundargarh and the impugned Judgment dated 24.09.2024 passed in F.A.O. No.08/2024 by the learned District Judge, Sundargarh.

The factual backgrounds of this Civil Misc. Petition, which prompted the petitioner for filing the same is that, the petitioner being the plaintiff filed the suit vide C.S. No.37 of 2024 in the Court of learned Senior Civil Judge, Sundargarh against the Opp. Parties arraying them as defendants praying for declaration of his title over the suit property and confirmation of his possession thereon.

In that suit vide C.S. No.37/2024, the plaintiff being the petitioner filed one I.A. vide I.A. No.13/2024 under Order 39, Rule 1 and 2 read with Section 151 of the CPC praying for restraining the Opp. Parties (defendants) temporarily from raising any construction over the suit property and from obstructing the passage of the petitioner or his tenants through the same till the final disposal of the suit vide C.S. No.37/2024.

To which, the Opp. Parties (defendants) objected stating that, the suit property was allotted in their favour in the final decree of the partition suit vide T.S. No.6/102 of 1987 and after allotment, the same has already been mutated to their names. For which, the plaintiff has no interest and possession in the suit property. Therefore, the prayer for temporary injunction of the petitioner-plaintiff is to be refused.

After hearing from both the sides, the learned Senior Civil Judge, Sundargarh dismissed to the I.A. No.13/2024 of the petitioner (plaintiff) on contest on dated 11.03.2024 assigning the reasons that,

"the suit property was allotted in the final decree of the suit vide T.S. No.6/102 of 1987 in favour of the Opp. Parties and they (Opp. Parties) have mutated the same to their names. For which, prima facie title and possession of the suit property is in favour of the Opp. Party, but not in favour of the petitioner-plaintiff. So, the petitioner is not entitled for the relief i.e. temporary injunction against them (Opp. Parties) with further observations therein that, even if it is accepted that, a boundary wall is situated in between Plot Nos.32 and 3578, then, the petitioner has a scope to approach the road by demolishing a portion of boundary wall in between plot Nos.32 & 3578 without any requirement of the suit land for the same as passage."

On being dissatisfied with the said order of dismissal of the I.A. No.13/2024 of the petitioner, he (petitioner) challenged the same preferring an Appeal vide F.A.O. No.8/2024 under Order 43, Rules 1(r) of the CPC, 1908 before the learned District Judge, Sundargarh being the appellant against the Opp. Parties arraying them (Opp. Parties) as respondents.

After hearing from both the sides, the learned Appellate Court dismissed to that F.A.O No.08/2024 of the petitioner as per its Judgment dated 24.09.2024 confirming the dismissal of I.A. No.13 of 2024.

On being aggrieved with the above order dated 11.03.2024 passed in I.A. No.13 of 2024 by the Senior Civil Judge, Sundargarh and the Judgment dated 24.09.2024 passed in F.A.O No.08/2024 by the learned District Judge, Sundargarh, the petitioner challenged the same by filing this CMP under Article 227 of the Constitution of India, 1950 being the petitioner against the Opp. Parties arraying them as Opp. Parties praying for quashing the impugned order dated 11.03.2024 passed in I.A. No.13/2024 and the impugned Judgment dated 24.09.2024 passed in F.A.O. No.08/2024.

I have already heard only from the learned counsel for the petitioner, as none appeared from the side of the Opp. Parties for participating in the hearing of this CMP.

In Para No.4 of the impugned order dated 11.03.2024 passed in I.A. No.13/2024 arising out of C.S. No.37/2024 by the learned Senior Civil Judge, Sundargarh, the learned Senior Civil Judge, Sundargarh has stated that,

"Plot No.32 has been divided into ten parts i.e. Plot No.32 to Plot No.32/9. As per the report of the Amin Commissioner, Plot No.32 was allotted in favour of the petitioner, whereas Plot No.32/2 was allotted in favour of the Opp. Parties and the map in respect of the same was prepared by the said Amin Commissioner. Therefore, the petitioner and his tenants can approach the road from Plot No.3578 through plot No.32 which has been allotted in his favour, but it is the case of the petitioner that, the brother of the petitioner has already constructed a wall in between plot Nos.32 and 3578, for which, it is impossible on his part to approach the road from Plot No.3578 through Plot No.32 and if injunction in the form of equitable relief shall not be granted in his favour and against the Opp. Parties, then, he (petitioner) shall sustain irreparable loss. For which, it is held that, even if it is accepted that, a boundary wall is in between Plot No.32 and Plot No.3578, then, the petitioner has a scope to approach the road by demolishing a portion of his middle boundary wall."

Whereas, it is not the case of the petitioner that, he has constructed any boundary wall in between Plot Nos.32 & 3578.

The aforesaid observations made by the learned Senior Civil Judge, Sundargarh in the impugned order passed in I.A. No.13/2024 regarding the construction of boundary wall by the petitioner in between plot Nos.32 and 3578 without any material relating to such construction and confirmation to the said observation by the learned District Judge, Sundargarh in F.A.O. No.08/2024 cannot be acceptable under law. Because, without any material regarding the construction of any boundary wall by the petitioner in between plot Nos.32 and 3578, the above observations relating to the same on the basis of surmises and conjectures cannot be sustainable under law. The said observations is to be held as redundant being baseless.

Though, the above observations made by the learned Senior Civil Judge, Sundargarh and the confirmation of the same by the learned District Judge, Sundargarh in F.A.O. No.08/2024 has been held to be redundant, still then, the final findings made by the learned Senior Civil Judge, Sundargarh in I.A. No.13/2024 in dismissing the said I.A. and confirmation of the same by the learned District Judge, Sundargarh in F.A.O. No.08/2024 cannot be held as erroneous, as the R.o.R of the suit land is continuing in the name of the Opp. Parties.

So, as per the discussions and observations made above, though, the final findings made by the learned Senior Civil Judge, Sundargarh in I.A. No.13/2024 relating to the dismissal of that I.A. No.13/2024 and the confirmation of the same by the learned District Judge, Sundargarh in F.A.O. No.08/2024 are not interfereable, but the observations made in the impugned order and Judgement passed in I.A. No.13/2024 and F.A.O. No.08/2024 respectively that, the petitioner has his boundary wall between plot Nos.32 & 3578 are interfereable, because the said observations are held as redundant being baseless.

As such, with the aforesaid observations, this CMP is disposed of finally directing the learned Senior Civil Judge, Sundargarh to dispose of the petition under Order 29, Rule 9 of the CPC, 1908 pending in the suit vide C.S. No.37/2024 filed by the petitioner as per law within a period of 15 days from the date of filing of the certified copy of this Judgement.

As such, this CMP filed by the petitioner is disposed of finally.