Orissa High Court
Gobinda Chandra Nayak And Others vs Panchanan Nayak And Another on 3 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1118 of 2022
Gobinda Chandra Nayak and others .... Petitioners
Mr. Samir Kumar Mishra, Advocate
-versus-
Panchanan Nayak and another .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 03.01.2023
1. 1. This matter is taken up through Hybrid mode.
2. Petitioners in this CMP seek to assail the judgment and
order dated 19th September, 2022 (Annexure-5) passed by
learned 2nd Additional District Judge, Balasore in FAO No.4/12
of 2022/2019 dismissing the appeal thereby confirming the
order dated 15th January, 2019 (Annexure-4) passed by learned
Senior Civil Judge, Nilgiri in IA No.58 of 2018 (arising out of
CS No.200 of 2018-I allowing an application under Order
XXXIX Rules 1 and 2 CPC.
3. Mr. Mishra, learned counsel for the Petitioners submits
that the suit has been filed for declaration, partition and
permanent injunction. At para-9 of the plaint, Plaintiffs have
categorically admitted that 'B' Schedule property was never
partitioned among the Plaintiffs and Defendant No.1 either
amicably or by metes and bound. The Plaintiffs and Defendant
No.1 have been possessing the same jointly. It is also pleaded
that the unity of title and possession are lying with the Plaintiffs
and Defendant No.1 jointly. Further in the petition under Order
XXXIX Rules 1 and 2 CPC (IA No.58 of 2018) at para-7, the
// 2 //
Plaintiffs have categorically stated that they (Plaintiffs and
Defendant No.1) are possessing 'A' schedule property to the
petition for injunction jointly and peacefully, which is part and
parcel of 'B' and 'C' Schedule property. Learned trial Court,
without considering the same, restrained the
Petitioners/Defendant Nos.1 to 6 from interfering with the
possession of the Plaintiffs. Learned appellate Court also
confirmed the said order observing that the Court should be
slow to interfere with the reasons assigned in the order passed
under Order XXXIX Rules 1 and 2 CPC. It is his submission
that necessary implication of the impugned order of injunction
is that Petitioners are restrained from entering upon the suit
property. Hence, the impugned orders under Annexures-4 and 5
should be set aside and the parties may be directed to possess
the suit property jointly.
4. Upon hearing learned counsel for the Petitioners and on
perusal of record, it appears that 'A' schedule property to the IA is
part and parcel of 'B' and 'C' Schedule property of the plaint. It is
categorically stated in the plaint and the IA as well that the
Plaintiffs and Defendant No.1 are jointly possessing the suit
property. Since it is admitted by the Plaintiffs/Opposite Parties
that the Plaintiffs and Defendant No.1 (Petitioner No.1 herein) are
in joint possession of the 'A' Schedule property to the IA, learned
trial Court taking the same into consideration did not restrain the
Petitioner No.1 from entering upon the suit property and has only
directed not to disturb the possession of Plaintiffs/Opposite
Parties. However, the Defendant Nos.2 to 6, who are purchasers
of the joint property are not entitled to possess the same jointly
along with the Plaintiffs and Defendant No.1. The said order has
// 3 //
been confirmed by the learned appellate Court under Order
Annexure-5. Thus, I find no infirmity in the orders impugned
herein.
5. Accordingly, the CMP is disposed with the aforesaid
observation.
Issue urgent certified copy of this order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
