Pravat Kumar Choudhury @ Pravat Choudhury And Others vs Ranjit Choudhury And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 16th May, 2023 (Annexure-7) passed by learned 1st Additional District Judge, Baripada in F.A.O. No.12 of 2021 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 25th September, 2021 (Annexure-7) passed by learned Civil Judge (Senior Division), Udala in I.A. No.29 of 2021 (arising out of C.S. No.80 of 2021) allowing an application filed by the Opposite Parties under Order XXXIX Rules 1 and 2 CPC restraining the Petitioners from entering upon the suit property.

Mr. Rout, learned counsel submits that the Petitioners are the raiyats under the Opposite Parties, who are the recorded tenants. The Opposite Parties have filed an application in the year, 1967 vide OLR Case No.2, 3, 4 and 6 of 1966-67 under Section 26(1) of the Odisha Land Reforms Act, 1960 (for short ‘the Act’) for resumption of the suit land, which were dismissed by  the  Tahasildar-cum-Revenue  Officer,  Udala  on  19th September, 1969. Subsequently, the Petitioners filed an application to declare them as tenants under the Opposite Parties, which is pending for adjudication. The present suit has been filed for injunction simplicitor without any prayer for recovery of possession. Since a proceeding under the Act is pending for consideration, a suit is barred under Section 67 of the said Act.

It is his submission that the consolidation R.O.R. published in the name of the Opposite Parties does not confer any right on them, as the effect of the said R.O.R. has been stayed by order dated 6th December, 2019 passed by the Revenue Divisional Commissioner, Central Division, Cuttack in R.C. No.97 of 2013. Without considering the same, learned trial Court passed the order under Annexure-5 restraining the Petitioners from coming over the suit land, which amounts to eviction of the Petitioners from the suit property. Learned appellate Court also did not appreciate the same in its proper perspective and passed the impugned order. Hence, this CMP has been filed.

Considering the submission made by Mr. Rout, learned counsel for the Petitioners and on perusal of the record, it appears that a proceeding at the instance of the Petitioners is pending before the OLR Authorities to declare them as tenants under the Opposite Parties. It is submitted by Mr. Rout, learned counsel for the Petitioners that in view of the pendency of OLR proceeding, the suit is barred under Section 67 of the Act.

I am not persuaded to accept such submission inasmuch as the present suit is not filed for declaration that the Petitioners are the tenants under the Opposite Parties or for resumption of the suit property. The suit has been filed for injunction simplicitor, which is not the issue before the OLR Authorities. Thus, the suit is maintainable.

Admittedly, the consolidation R.O.R. has been published in the name of the Petitioners. A R.O.R. published under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 is a document of title. Thus, the Opposite Parties have prima facie title over the suit property until the R.O.R. published is set aside by the competent Court of law.

It is submitted by learned counsel for the Petitioners that the Revenue Divisional Commissioner has directed the Authorities under the Consolidation Act not to publish the R.O.R. In support of his submission he referred to the order dated 6th December, 2019 passed by the Revenue Divisional Commissioner, Central Division, Cuttack in R.C. No.97 of 2013. On perusal of the said order, it does not appear that the Authorities under the Consolidation Act are restrained from publishing the R.O.R.

As on date, the Consolidation R.O.R. stands in the name of the Opposite Parties. Thus, a legal presumption arises that they are in possession over the suit property. No material has been placed before this Court to show that the Petitioners are in possession over the suit property.

In view of the above, I find no infirmity in the impugned orders under Annexures-5 and 7.

Accordingly, the CMP being devoid of any merit stands dismissed.

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

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