Vikash Kumar @ Vikash Bhoot vs Sarada Devi And Others
2023 Latest Caselaw 1284 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CMP NO. 109 OF 2023
                 Vikash Kumar @ Vikash Bhoot          ....       Petitioner
                                           Mr. B.N. Mohapatra, Advocate
                                        -versus-
                 Sarada Devi and others               .... Opp. Parties



                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        07.02.2023

   1.       1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the judgment dated 2nd April, 2022 (Annexure-4) passed in FAO No.05 of 2022, whereby learned Additional District Judge, Rairangpur allowed the appeal by modifying the order dated 3rd March, 2022 passed by learned Civil Judge (Senior Division), Rairangpur in I.A. No.71 of 2021 (arising out of C.S. No.224 of 201) allowing an application under Order XXXIX Rules 1 and 2 C.P.C. filed by the Plaintiffs-Opposite Parties.

3. Mr. Mohapatra, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiffs-Opposite Parties for permanent injunction. Along with the plaint, an application under Order XXXIX Rules 1 and 2 in I.A. No.71 of 2021 was filed by them with a prayer to restrain the Defendant No.1-Petitioner from entering upon the suit land and changing its nature and character. Considering the rival contentions of the parties, said application was allowed vide order dated 3rd March, 2022 (Annexure-3) restraining the Defendant No.1-

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Petitioner from entering upon the suit land and changing its nature and character. Assailing the same, the Defendant No.- Petitioner preferred FAO No. 5 of 2022, which was allowed with the following direction:

"14. In view of the facts involved in the present case and the discussions made above and further keeping in mind the law laid down in Gujarat Bottling Co. (supra), it is ordered that while the defendant is directed not to interfere with the peaceful possession of the plaintiffs over the Suit Schedule B land, it is also ordered that the plaintiffs shall not make any construction over the purchased lands of the defendant in Plot No.254 measuring an area of Ac.0.66 dec. under Mouza Pichhiligahty which was purchased by him through E- Auction under RSD No.1271800296 dated 06.08.2021, till disposal of the suit. The plaintiffs shall file an undertaking before the learned trial court stating therein that on the conclusion of trial, in the event, they are found to have made any constructions over Plot No.254 measuring an area of Ac.0.66 dec. under Mouza Pichhiligahty which was purchased by him through E- Auction under RSD No.1271800296 dated 06.08.2021, it shall be demolished by them at their cost.

15. In view of the discussions made, it has to be held that the order dated 03.093.2022 passed by learned Civil Judge (Sr. Divn.), Rairangpur in IA No.71/2021 arising out of CS No.224/2021 is modified to the extent stated above. In terms of the order stated above, the appeal stands disposed of on contest but with the aforesaid findings and observations. The copy of the judgment along with the photocopy of the LCR in IA No.71/2021 and CS No.224/2021 be send back to the Court of learned Civil Judge (Sr. Divn.), Rairangpur forthwith. However, in the circumstances, there shall be no order as to costs."

4. Mr. Mohapatra, learned counsel for the Petitioner further submits that in spite of such direction, the Plaintiffs-Opposite Parties in violation of the same are encroaching upon the land of the Defendant No.1-Petitioner and are making construction

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thereon. Hence, the Plaintiffs should be restrained from making any construction over the suit land till disposal of the suit. He, therefore, prays for setting aside the impugned order under Annexure-4 and to dismiss the application under Order XXXIX Rules 1 and 2 C.P.C. filed by the Plaintiffs-Opposite Parties.

5. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that learned Appellate Court, considering the rival contentions of the parties and striking a balance keeping in mind their interest, directed that the Plaintiffs shall not make any construction over the land purchased by the Defendant No.1-Petitioner in Plot No.254 measuring an area of Ac.0.66 decimals situated in mouza Pichhiligahty. It was also directed that if it is found that the Plaintiffs have raised any construction over the land purchased by the Defendant No.1-Petitioner, they will demolish the same at their own cost.

6. In view of such finding, I find no infirmity in the impugned order as it is just and reasonable. Further, if the Opposite Parties in violation of the restraint order are making construction over the suit land, it is open for the Petitioner to work out his remedy available under the Code of Civil Procedure.

7. With the aforesaid observation, the CMP is disposed of without interfering with the impugned order.

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

(K.R. Mohapatra) Judge bks