Orissa High Court
Hadu Martha And Others vs Janhabi Bhusan Maharatha on 2 July, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.189 OF 2021
Hadu Martha and others .... Petitioners
Mr. Soumya Mishra,
Advocate
-versus-
Janhabi Bhusan Maharatha .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 02.07.2021
03. 1. This matter is taken up through video conferencing mode.
2. The Petitioners in this CMP seek to assail the order dated
20th March, 2021 (Annexure-9) passed by learned Civil Judge
(Senior Division), Banpur in Execution Case No.1 of
2017,whereby he allowed the execution petition and directed
the Process Server of the Court to deliver vacant possession to
the D.Hr. by evicting the J.Dr.-Petitioners from the Part-I of
the suit scheduled property, they have entered upon, after the
decree has been passed. The J.Drs. (Petitioners) are also
directed to deliver vacant possession of the land mentioned in
Part-1 of suit schedule property to the D.Hr. within a period
of one month from the date of passing of the order.
3. Mr. Mishra, learned counsel for the Petitioners submits that
C.S. No.199 of 2010 was filed for declaration of right, title
and possession over the suit property, permanent injunction
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and alternatively for mandatory injunction as well as recovery
of possession.
4. Learned trial court decreed the suit with the following
observation and order:
"........... When the defendants interfered with the
possession of plaintiff over Schedule 'A' and 'B'
properties of the present suit, his (plaintiff) right over
the suit properties is required to be protected by
issuance of injunction. Though the plaintiff has
prayed for alternative relief of mandatory injunction
and recovery of possession, no evidence is led on that
score. Thus, it is held that the plaintiff is entitled only
to the relief of permanent injunction, as prayed for.
Hence, it is ordered.
Order
The suit be and the same is decreed in part exparte
against the defendants No.1, 3 and 4 but in the
circumstances there is no order as to cost.
The defendants No.1, 3 and 4 are hereby permanently
injuncted from entering upon the suit properties."
From the above, it is evident that while granting permanent
injunction, learned trial refused to grant mandatory injunction
and recovery of possession as prayed for. However, the
Plaintiff-D.Hr. filed Execution Case No.1 of 2017 alleging
that:
"That the dhr is a retired service holder. During the
service career and also thereafter, his family was
staying outside the village and the dhr used to sojourn
in his residential house to look after his landed
properties and other purposes. On 27.02.2017 when
he was alone in his residential house, the defendant
No.1 being the father guardian/karta of his family
alone with his sons Ajay (D3) and Akhaya (D4)
forcibly entered into the residential house of Dhr
(Part 1 of the schedule of this petition) and occupied
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it driving the dhr out, giving serious threatening. The
dhr being frightened came to the Banpur P.S. and
informed the matter showing the copy of the decree
but no action has been taken by them and finding no
other alternative and being harassed, is approaching
this court for necessary reliefs."
5. Accordingly, Execution Case No.1 of 2017 was to put him
(the D.Hr.-Opposite Party) in possession. The Petitioners-
J.Drs. on receiving the notice in the execution case filed a
petition under Section 47 of C.P.C. stating that since relief of
mandatory injunction as well as recovery possession has been
refused, the execution case is not maintainable. That petition
was dismissed vide order dated 11th February, 2019 and
thereafter the execution proceeding continued and the
impugned order dated 20th March, 2020 was passed. Mr.
Mishra, learned counsel for the Petitioners relied upon the
decision of this Court in the case of Pradeep Kumar
Satapathy -v- Abhimanyu Sahoo and others; reported in
2017 (I) OLR-397. Referring to paragraph-11 of judgment, he
submits that learned executing court ought to have made an
endeavour to test the veracity of the allegation of D.Hr. with
regard to his dispossession from the suit land after the decree
was passed. He further submits that for that purpose, the court
has to look into the allegation, meticulously and demarcate the
suit land. That having not been done before passing the
impugned order, the same is not sustainable in the eyes of law
and is liable to be set aside and the matter may be remitted
back to the executing court to make an enquiry with regard to
the veracity of the allegation made by the D.Hr. and also to
demarcate the land by the Amin Commissioner before
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directing to put the D.Hr. in possession of the suit land. It is all
the more required as there is a serious dispute with regard to
boundary of the suit land.
6. Heard Mr. Mishra, learned counsel for the Petitioners.
Perused the materials placed before me including the
impugned order as well as the case law in the case of Pradeep
Kumar Satapathy (supra). There is no quarrel over the
position of law that the allegation made by the D.Hr. should
not be accepted unilaterally. There has to be an enquiry with
regard to the veracity of the allegation made by the D.Hr.
before directing the J.Drs. to deliver possession of the suit
land. On perusal of the impugned order, it appears that the
impugned order has been passed on the basis of a petition filed
by the D.Hr-Opposite Party. The J.Drs.-Petitioners filed show
cause reiterating the grounds taken by them in a petition under
Section 47 C.P.C. (CMA No.46 of 2018), which was
dismissed on contest vide order dated 11.02.2019. The said
order remained unassailed and attained its finality. The J.Drs.-
Petitioners in their show cause (Annexure-7) have never
denied the specific allegation made by the D.Hr. to the effect
that he was dispossessed from his residential house on
27.02.2017. Thus, no further enquiry with regard to veracity of
such allegation is necessary.
7. It is further evident that the J.Drs. have been directed to
deliver possession of Part-I of suit schedule land to the D.Hr.
within a period of one month from the date of passing of such
order. It appears that neither the Petitioners assailed the said
order, i.e. order dated 20th March, 2020 within the aforesaid
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period of one month nor delivered possession of the land to
the D.Hr. It is only after a lapse of one year when the D.Hr.-
Opposite Party took step to issue warrant to the balif to
implement the order, the J.Drs.-Petitioners filed this CMP
assailing the order dated 20.03.2020. Needless to say that
while delivering possession of Part-1 of the suit schedule
property, the Amin Commissioner will demarcate the land and
if he finds any encroachment over the same, will do the
needful by vacating the same and delivering the possession to
the D.Hr. Thus, submission of Mr. Mishra, learned counsel for
the Petitioners to the effect that neither any enquiry nor any
demarcation has been made to test the veracity of the
allegation made in the impugned order does not hold good.
8. In view of the above, without interfering with the
impugned order, this Court observes that the impugned order
dated 20th March, 2020 shall be given effect to in accordance
with law as expeditiously as possible.
9. With the aforesaid observation, the CMP is disposed of.
10. As the restrictions due to resurgence of COVID-19 situation
are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at
par with certified copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's Notice
No.4587, dated 25th March, 2020 as modified by Court's Notice
No.4798, dated 15th April, 2021.
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(K.R. Mohapatra)
Judge
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