Artatrana Nayak vs Laxmidhar Naik And Others
2023 Latest Caselaw 547 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP NO. 1287 OF 2022
                 Artatrana Nayak                     ....    Petitioner
                                      Mr. Samir Kumar Mishra, Advocate
                                        -versus-
                 Laxmidhar Naik and others           .... Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        17.01.2023

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

2. The Petitioner in this CMP seeks to assail the judgment dated 20th October, 2022 (Annexure-5) passed in FAO No. 05 of 2021, whereby learned Additional District Judge, Anandapur dismissing the appeal confirmed the order dated 9th September, 2021 (Annexure-4) passed by learned Civil Judge (Senior Division), Anandapur in I.A. No.29 of 2020 (arising out of C.S. No.96 of 2020) dismissing an application filed by the Petitioner under Order XXXIX Rules 1 and 2 C.P.C.

3. It is submitted by Mr. Mishra, learned counsel for the Petitioner that C.S. No.96 of 2020 has been filed by the Plaintiff-Petitioner for partition of the suit property claiming 1/4th share and also to declare the deed of adoption in favour of father of Defendant Nos.2 and 3, namely, Baidhar Nayak, to be illegal, invalid and inoperative as well as other consequential relief. It is his submission that a part of Plot No.774 under Khata No.226/69 was acquired by the Government for public purpose. Since an order was passed to disburse the

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compensation amount in favour of Defendants Nos.2 and 3, an application under Order XXXIX Rules 1 and 2 C.P.C. was filed to restrain the Defendants from receiving compensation amount from the Land Acquisition Officer, Salapada in I.A. No.209 of 2018 to the tune of Rs.1,07,040/-. Learned trial Court holding that the correctness of the deed of adoption can be scrutinized at the time of trial of the suit and the Petitioner had not produced the final order passed by the Land Acquisition Officer awarding compensation in favour of Defendant Nos.2 and 3, rejected the application. It was further held that no material to the effect that the Petitioner had challenged the said final order of compensation was filed. Being aggrieved, the Petitioner preferred FAO No. 5 of 2021. Learned Appellate Court held that there is no iota of doubt that Baidhar Naik died leaving behind Defendant Nos.2 and 3 as his legal heirs and there is a registered deed of adoption of the year, 1978 in favour of said Baidhar Naik by Nisha Naik. The Plaintiff also could not produce any material with regard to the award of compensation in favour of Defendant Nos.2 and 3 by the Land Acquisition Officer. So far as Khata No.68 is concerned, learned Appellate Court held that there is no whisper about any allegation that Defendant Nos.2 and 3 are creating disturbance over Khata No.68. Hence, he dismissed the appeal.

4. Mr. Mishra, learned counsel for the Petitioner submits that since the Land Acquisition Officer has awarded a compensation for acquisition of Plot No.774 in favour of Defendant Nos.2 and 3 and the Plaintiff has raised objection with regard to the said award, the Land Acquisition Officer

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should have referred the matter to the Civil Court for adjudication. Once the award of compensation is disbursed in favour of Defendant Nos.2 and 3, there will be difficulty in recovering the same, in the event they succeed in the suit. These materials aspects were not taken into consideration by learned Courts while adjudicating the petition under Order XXXIX Rules 1 and 2 C.P.C. Hence, this CMP has been filed.

5. Considering the submission made by learned counsel for the Petitioner and in view of Section 16 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the Act'), a registered deed of adoption raises a legal presumption that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved. Since the deed of adoption is under challenge in the suit itself, the validity of the same can be adjudicated in the suit. So far as disbursement of the awarded amount for acquisition of the land is concerned, the Petitioner has statutory remedy to avail the same. Inaction of the authorities as alleged by the Petitioner can also be adjudicated in different forum and not before the Civil Court. Thus, neither learned trial Court nor learned Appellate Court has committed any error in rejecting the petition for injunction. It is further observed by learned Appellate Court that no allegation with regard to creation of disturbance by Defendant Nos.2 and 3 over Khata No.68 has been alleged in the petition under Order XXXIX Rules 1 and 2 C.P.C. Hence, an application for temporary injunction in absence of any allegation or apprehension/creation of disturbance in possession, is not

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maintainable. Thus, I find no reason to interfere with the impugned orders under Annexure-4 and 5.

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

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

                                        (K.R. Mohapatra)
bks                                          Judge