Surendra Nayak vs Dhaneswar Mahakud & Ors
2023 Latest Caselaw 9991 Ori

Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Aug-2023 14:12:32




                                           IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                         RSA No.63 of 2021

                                Surendra Nayak                                 ....         Appellant
                                                                            Mr.D.P.Mohanty, Advocate

                                                                 -versus-

                                Dhaneswar Mahakud & Ors.                       ....        Respondents


                                              CORAM:
                                              JUSTICE B. P. ROUTRAY

                                                             ORDER

24.08.2023 Order No.

01. 1. The matter is taken up through Hybrid mode.

2. Heard Mr. Mohanty, learned counsel for the Appellant.

3. Defendant No.1 is the present Appellant. Plaintiff filed the suit praying for demarcation and permanent injunction in respect of 'Ka' scheduled land consisting of Plot Nos. 1686, 1687 and 1688. The learned Trial Court at Para 12 of the impugned judgment have observed as follows:-

"12.In view of my aforesaid observation I want to conclude that the plaintiffs are claiming for an absolute restraint against defendants over 'Ka' scheduled property having full knowledge about Ext.B and C, and since the

1. The title and possession of the plaintiffs over Plot Nos. 1686, 1687 and 1688 being undisputed are conclusively established.

2. The Ext.B & C are till now remained unchallenged and is in force between the parties,

3. The right of way of defendants over Plot No. 1688 in presence of Ext.B & C is well established and their exercise of such right is neither

Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Aug-2023 14:12:32

disproved by any party to the suit. Hence these issues are answered positively in favour of plaintiffs in respect of Plot Nos. 1686 and 1687 only.

4. The First Appellate Court confirmed the decree of the Trial Court by observing as follows:-

From the judgment and decree passed by the learned Trial Court, it is luculently clear that M.S. plot No. 1688 has not been ordered to be demarcated. So, the order passed by the learned lower Court to demarcate the 'Ka' schedule land except plot No.1688 does not appear to be incorrect and illegal in as much as the plaintiffs- respondents are admittedly the exclusive owner thereof having absolute right, title, interest and possession thereon. The apprehension of the Appellant-Defendant that the plaintiffs may make construction over M.S. plot No.1688 of M.S. Khata No.182 of mouza Andarai does not appear to be well founded since no counter claim has been made on their behalf seeking any relief against the plaintiffs-respondents in respect of that plot. Since, it has been left as road Gangei Nayak having right to use it as per the judgment and decree passed in O.S. 401 of 1942 vide Ext.B and C the plaintiffs-respondents cannot make any construction thereon.

5. Since the Defendant does not claim any other right than the right of passage over Plot No. 1688, I do not see any substantial question in his favour in the present appeal.

6. Accordingly, the appeal is dismissed.

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

( B.P. Routray) Judge S.Das