Pratima Samantaray vs Subrat Sahoo And Another
2023 Latest Caselaw 1516 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP No. 1226 OF 2022
                 Pratima Samantaray                    ....       Petitioner
                                       Mr. Bibhudhananda Muduli, Advocate

                                          -versus-
                 Subrat Sahoo and another                 ....    Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             17.02.2023
   2.       1.      This matter is taken up through hybrid mode.

2. Judgment dated 22nd April, 2022 (Annexure-5) passed by learned Additional District Judge-cum-Special Judge (CBI), Court No.1, Bhubaneswar in F.A.O. No.25 of 2017 is under challenge in this CMP, whereby dismissing the appeal, order dated 22nd March, 2017 (Annexure-4) passed by learned Civil Judge (Junior Division), Bhubaneswar in I.A. No.01 of 2016 (arising out of C.S. No.2720 of 2016), has been confirmed.

3. Mr. Muduli, learned counsel for the Petitioner submits that although the Petitioner has purchased the suit property by virtue of a Registered Sale Deed, but in the Hal settlement, the suit land has been recorded in the name of the Defendants-Opposite Parties. The Petitioner has also filed a revision in O.S.S. No.2685 of 2016 under Section 15(b) of the Odisha Survey and Settlement Act, 1959 (for short 'the Act'), which is pending before the Member, Board of Revenue, Odisha, Cuttack. As the Member, Board of Revenue does not have any jurisdiction to pass an order of injunction while exercising power under Section 15(b) of the Act, C.S. No.2720 of 2016 has been filed for injunction and

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ancillary relief. Since the Opposite Parties trying to change the nature and character of the suit, an application under Order XXXIX Rules 1 and 2 C.P.C. was filed with a prayer to restrain the Opposite Parties from changing the nature and character of the suit land. The said petition was dismissed vide order dated 22nd March, 2017 under Annexure-4. Assailing the same, the Petitioner preferred F.A.O. No.25 of 2017, which was also dismissed vide judgment dated 22nd April, 2022 under Annexure-

5. Hence, this CMP has been filed.

4. It is submitted by Mr. Muduli, learned counsel that since the Petitioner has purchased the suit property from the rightful owner, he has prima facie right, title and interest over the suit property. Taking advantage of the wrong recording of the land in the name of the Opposite Parties in the Hal settlement, they are creating disturbance and trying to change the nature and character of the suit land. The provision of Order XXXIX Rules 1 and 2 C.P.C. is meant to protect the lis during pendency of the suit. Thus, the parties to the suit should maintain status quo over the suit property during pendency of the suit. Learned Courts without considering the same, refused to grant an order of injunction, for which the Petitioner is seriously prejudiced and suffered irreparable loss. Learned trial Court holding that granting the relief of injunction will amount to grant the prayer made in the suit, refused the prayer for temporary injunction. Learned appellate Court also holding that the R.O.R. stands in the name of the Opposite Parties, refused to interfere with the same. Hence, the impugned orders under Annexures-4 and 5 are not sustainable and are liable to be set aside.

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5. Considering the submission of Mr. Muduli, learned counsel for the Petitioner and on perusal of the record, it is apparent that R.O.R. stands in the name of the Opposite Parties. Materials on record reveal that the Opposite Parties purchased the suit property on 25th October, 2004 and 28th May, 2003 respectively, but the Petitioner has purchased the suit property on 29th September, 2010. Learned Courts also found that there is no material on record to show that the Petitioner is in possession over the suit property.

6. In view of the above, this Court finds that learned Courts have committed no error in refusing to entertain the prayer under Order XXXIX Rules 1 and 2 C.P.C., more particularly, when there is no material on record to show that the Petitioner is in possession over the suit property.

7. Accordingly, the CMP being devoid of any merit stands dismissed.

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

                                        (K.R. Mohapatra)
ms                                            Judge