Orissa High Court
Rajkishore Nayak And Others vs Bhubanananda @ Bhobani Nayak on 18 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 171 of 2023
Rajkishore Nayak and others .... Petitioners
Mr. Sambeet Pattanayak, Advocate
-versus-
Bhubanananda @ Bhobani Nayak .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 18.04.2023
1. 1. This matter is taken up through Hybrid mode.
2. Judgment dated 16th January, 2023 (Annexure-6) passed
in FAO No.17 of 2021 is under challenge in this CMP, whereby
learned Additional District Judge, Nimapara dismissing the
appeal it confirmed the order dated 6th August, 2021 (Annexure-
5) passed by learned Civil Judge (Senior Division), Nimapara in
IA No.63 of 2021 (arising out of CS No.109 of 2021)
restraining the Petitioners from interfering with the peaceful
possession of the suit schedule property of the Opposite Party.
3. Learned counsel for the Petitioner submits that from a
compact area of Ac.0.29 decimal, the Petitioners purchased
Ac.0.24 and 1/6th decimal, and the Opposite Party purchased
Ac.0.04 and 5/6 decimal from Sabik Plot No.329 in Sabik Khata
No.328 under Mouza Patapur under Kakatpur tahasil in the
district of Puri. Taking advantage of wrong recording in the
consolidation ROR in the name of the Opposite Party he filed
the suit for declaration of right, title and interest over
consolidation Khata No.660 consolidation Plot No.578 under
Khata No.660 to an extent of Ac.0.06 decimal. Along with the
plaint, the Opposite Party filed an application under Order
// 2 //
XXXIX Rules 1 and 2 CPC in IA No.63 of 2021, which was
allowed restraining the present Petitioners from interfering with
the peaceful possession of the Opposite Party over the suit land
(aforesaid property). While adjudicating the case, learned trial
Court did not at all take into consideration the sale deeds
executed in favour of the Petitioners and Opposite Party.
However, being aggrieved by the order of injunction passed by
learned trial Court, the Petitioners filed FAO No.17 of 2021.
Learned Additional District Judge, only relying upon the
consolidation ROR, which has been wrongly prepared,
dismissed the appeal rejecting the claim of the Petitioners. It is
his submission that the Petitioners have also filed counter-claim
for declaration of their right, title and interest over the land they
have purchased from the true owners. Since the Petitioners are
in possession over Ac.0.24 decimal of land, in view of
impugned orders under Annexures-5 and 6, they are going to be
dispossessed from one decimal of their purchased land. This
aspect was not considered by either learned trial Court or by
learned appellate Court while adjudicating the matter. Hence,
the impugned orders are liable to be set aside.
4. Considering the submission of learned counsel for the
Petitioners, this Court finds that the consolidation ROR in
respect of the aforesaid property stands in the name of the
Plaintiff/Opposite party. Since the consolidation ROR is a
document of title, he is presumed to be in possession over the
same unless proved otherwise by adducing evidence. As the suit
is pending for adjudication, this Court is not inclined to record
any opinion on the same. Although the Petitioners claim that
they are in possession over one decimal of land out of six
// 3 //
decimal recorded in favour of the Opposite Party, but the
consolidation ROR stands in the name of the Plaintiff/Opposite
Party, which prima facie shows that the Opposite Party is in
possession of the entire six decimal of land recorded in his
name. Thus, learned Courts committed no error in passing the
order of injunction restraining the Petitioners from interfering
with the aforesaid six decimal of land recorded in the name of
the Opposite Party.
5. Accordingly, CMP being devoid of any merit stands
dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
