Anu Charan Swain vs Unknown
2021 Latest Caselaw 10986 Ori

                   HIGH COURT OF ORISSA : CUTTACK
                                    RSA No.86 of 2018


            In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree passed by Additional
     District Judge, Nimapara in RFA No.209/128 of 2016/2015.
                                     .........

            Anu Charan Swain                                      ::::    Appellant.

                                       -:: VERSUS ::-
            Prahallad Swain                                       ::::    Respondent.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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For Appellant ... M/s. G.N. Mishra, P.C. Das & D.N.

                                                   Pattnaik, Advocates
             For Respondent                 ...      None

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     PRESENT:
                      THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 27.10.2021

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D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the

Code of Civil Procedure (for short, 'the Code') has questioned the

judgment and decree passed by the learned Additional District Judge,

Nimapara in RFA No.209/128 of 2016/2015.

By the said judgment and decree, the Appeal filed by the

Respondent-Defendant challenging the judgment and decree dated

21.9.2015 and 01.10.2015 respectively passed by the learned Civil {{ 2 }}

Judge (Jr. Divison), Nimapara in C.S. No. 50 of 2014 has been allowed

and the Trial Court's order decreeing the suit filed by the Appellant-

Plaintiff in restraining the Respondent-Defendant permanently from

interfering in the peaceful enjoyment over the suit tank and embankment

by the Plaintiff has been overturned in non-suiting the Plaintiff.

2. For the sake of convenience, in order to avoid confusion and bring

in clarity, the parties hereinafter have been referred to, as they have been

arraigned in the Trial Court.

3. Plaintiff's case in short is that the suit tank situated over the land

under plot No. 164, khata No. 167 under Jalasaya kisam in Mouza-

Ekamakana corresponding to sabik plot No. 248 stood recorded in the

name of Jayaram Swain, Abhiram Swain, sons of Baraju Swain along

with Bhikari Swain, Sudam Swain, sons of Ghana Swain. It is stated that

the suit tank is now recorded in the name of the Plaintiff along with

other co-sharers which includes the Defendant. Alleging that the

Defendant is attempting to fill up the suit tank by putting garbage and

earth with an intention to obstruct the Plaintiff from using the tank, the

suit has been filed seeking the relief as already stated.

4. The Defendant in the written statement while traversing the plaint

averments has stated that the Plaintiff has no share over the suit land

which he has sold away his share and that has been subsequently

purchased by the Defendant. It is his case that although in the record of {{ 3 }}

right the kisam jalasaya finds mention, in so far as the tank is concerned

for all practical purpose it has lost all the characteristic as such and the

position that at one point of time the tank was situated has undergone

sea change. It is stated that so far as the land recorded under khata No.

167, plot No. 164 measuring Ac.0.10 decimals is concerned, the same

stands recorded in the name of Bhikari Swain having eight anna share,

Sugriba Swain, Bimbadhar Swain, Anu Charan Swain, sons of Jairam

Sain with four anna share and Abhiram Swain, son of Baraju Swain with

four anna share. It is categorically pleaded that the Plaintiff has sold his

share along with other property to Laxmidhar Nayak. Therefore it is said

that the Plaintiff has no right, title and interest over the suit tank and as

such is not entitled to the relief of permanent injunction as prayed for.

5. On the above rival pleadings, the Trial Court having framed four

issues has answered those in favour of the Plaintiff and thus had decreed

the suit.

6. Being aggrieved by the above judgment and decree passed by the

Trial Court, the Defendant having carried the First Appeal; the same has

been allowed. So the Plaintiff having now been non-suited has preferred

this Appeal.

7. Learned counsel for the Appellant-Plaintiff submits that the

Lower Appellate Court has erred both on facts and law in setting aside

the findings recorded by the Trial Court as also the ultimate result {{ 4 }}

recorded by the Trial Court running in favour of the Plaintiff granting

him the decree of permanent injunction. He submits that the view taken

by the First Appellate Court that when the property is not partiable and

jointly recorded in the name of the parties with share noting, it is not

possible to ascertain the portion over which the Plaintiff has the

exclusive possession and as it has not been mentioned nor proved, no

decree of permanent injunction can be passed is untenable. He submits

that this is a third case which has been invented by the First Appellate

Court. According to him, when the Plaintiff has successfully proved his

case of exclusive possession of the suit property which is being illegally

interfered with by the Defendant, in the facts and circumstances of the

case the Trial Court's view which was well in order has been

erroneously set aside. He thus submits that the above are the substantial

questions of law which stand to be answered in the Appeal.

8. Keeping in view the submission made, I have carefully gone

through the judgment passed by the courts below. As already stated the

suit tank stands jointly recorded in the name of the co-sharer. The Trial

Court has found the land to be not partiable. The area of the land is

Ac.0.10 decimals and the Plaintiff nowhere has indicated in the plaint as

to which portion is in his exclusive possession and which are the portion

in separate possession of the other co-sharer. All the co-sharer have not

been made parties and the suit is targeted only against the Defendant.

{{ 5 }}

The First Appellate Court thus that in the above factual settings of the

case having taken the view that order of the Trial Court directing the

Defendant not to interfere with the peaceful possession of the Plaintiff

over the suit land when the Defendant is also the rightful owner cannot

be held to have fallen in error in any way. First Appellate Court has

rightly gone to hold the same in rectifying the mistake committed by the

Trial Court in further saying that in the facts and circumstances when it

cannot be ascertained as to which portion of the suit tank is possession

of the Plaintiff, the decree of the permanent injunction as passed by the

Trial Court is also not sustainable in the eye of law. This Court is wholly

in agreement with the views taken by the First Appellate court.

9. In that view of the matter, the submission of the learned counsel

for the Appellant that there arises the substantial question of law as

stated in paragraph- 7 cannot be countenanced with.

10. In the result, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy