SATRUGHNA PARIJA vs SARAT MAJHI AND OTHERS

DR.A.K.RATH, J.

Plaintiff is the appellant against confirming judgment in a suit for permanent injunction.          Â

The case of the plaintiff is that he is the owner of the suit schedule land. The defendants made an attempt to encroach upon a portion of the suit

land. Â

The defendants entered contest and filed a written statement stating, inter alia, that they have not encroached upon the suit schedule land. Â

On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence. Learned trial court dismissed the suit holding,

inter alia, that the suit land is not identifiable. Unsuccessful plaintiff filed T.A. No. 53/27 of 1997/92 before the learned 2nd Additional District Judge,

Bhubaneswar, which was eventually dismissed.

The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.1(A), (B), (C) and (D) of the appeal

memo. The same are:-

“1(A) If the courts below have committed error of record in citing improper description of the suit property as a ground for dismissing the

plaintiff’s suit when the plaintiff has described the suit land with reference to survey number, boundary and dimension coupled with a sketch map

showing the subject matter of dispute ?

(B) If the courts below are justified in their conclusion that on the description of the suit land, no executable decree can be passed, basing upon the

discrepant pleading and evidence of the defendants ?

(C) If the courts below are justified in refusing the plaintiff’s prayer for permanent injunction even after finding that the defendants have no

manner of right, title or interest in the suit land and that they have not acquired any title in the suit land by adverse possession ?

(D) If the court below has committed an error of record in over looking the amendment of the plaint and then observing that no sketch map has been

attached to the plaint, more so the sketch map has already been proved and maked as Ext.3 ?â€​ Â

Heard Mr. D.P. Mohanty, learned counsel for the appellant. None appears for the respondents.

Mr. Mohanty, learned counsel for the appellant submits that the courts below committed a manifest illegality and impropriety in holding, inter alia,

that the suit land is not identifiable. The plaintiff has described the suit land mentioning plot no.723, Khata No.100. On the body of the plaint, the

plaintiff stated the area which was to be encroached upon by the defendants.

In the schedule of the plaint, the suit land has been described as under:- “Schedule of Property Mouza-Malipara, P.S. Chandaka, Dist. Puri Plot

no. 723, Area-Ac.0.050 decimals, Khata No. 100, Sabik-417 and 418. Bounded by East-Laxman Parida, Bhagaban Parida, Brahmananda RoutÂ

West-Homestead land of the defendants. North-Public Road Southâ€​

The assertion of the plaintiff is that the defendants made an attempt to encroach upon a portion of the suit land. But then, the suit schedule property

does not indicate from which portion of the area the defendants made an attempt to encroach upon. The boundary of the entire suit plot has been

given and not the area, which was to be encroached upon by the defendants as alleged. The suit land is not identifiable. Thus the simple suit for

permanent injunction is not maintainable. The substantial questions of law are answered accordingly.

In the ultimate analysis, the appeal fails and is dismissed. There shall be no order as to costs.