Orissa High Court
Krushna Chandra Singh vs State Of Odisha And Others on 20 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 89 of 2023
Krushna Chandra Singh .... Petitioner
Mr. Anjan Kumar Biswal, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Baibaswata Panigrahi,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 20.03.2023
3. 1. This matter is taken up through Hybrid mode.
2. Mr. Biswal, learned counsel for the Petitioner files certified
copy of Annexure-4, which is taken on record.
3. Judgment dated 12th January, 2023 (Annexure-6) passed
by learned 2nd Additional District Judge, Baripada, Mayurbhanj in
FAO No.4 of 2020 in dismissing the appeal and confirming the
order dated 10th January, 2020 (Annexure-4) passed by learned
Civil Judge (Senior Division), Udala in IA No.22 of 2019 (arising
out of CS No.54 of 2019) dismissing an application under Order
XXXIX Rules 1 and 2 CPC, is under challenge in this CMP.
4. Mr. Biswal, learned counsel for the Petitioner submits that
admittedly the land stands recorded in the name of the
Government. Recently, it has been converted to 'Gochar' kissam.
The land is in possession of the Petitioner since the time of his
forefathers. In past, several encroachment cases were initiated but
the Petitioner has not yet been evicted from the suit property. The
land of the Petitioner surrounds the suit land. As such, it is of no
use for the Government. Recently, an encroachment case was
initiated against the Petitioner in Encroachment Case No.63 of
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2014 and the Petitioner has been evicted from a part of the suit
property and notice has been issued for his eviction from the rest
part of the suit property as per Annexures-7 and 8 respectively. It is
his submission that learned trial Court has found a strong prima
facie case in favour of the Petitioner also found that balance of
convenience leans in favour of the Petitioner, but he refused to pass
an order of temporary injunction on the ground that the Petitioner
will not suffer any irreparable loss. Learned appellate Court,
holding that the land is reserved for public purpose for construction
of road and grazing filed for cattle, dismissed the appeal. Hence,
this CMP has been filed.
4.1 In support of his case, Mr. Biswal, learned counsel for the
Petitioner relied upon a decision of this Court in the case of
Joginath Khatua Vs. Bira and others (FAO No.35 of 2009
disposed of on 19th January, 2016), wherein this Court has held as
under:-
"....When the plaintiff is enjoying the suit land by
construction his residential house, his possession should be
protected unless he is evicted in due process of law...."
In the instant case, the authorities, without following due process
of law, are trying to evict the Petitioner forcibly from the suit land.
Hence, the Petitioner is entitled to an order of temporary
injunction. He therefore prays for setting aside impugned orders
under Annexures-4 and 6 and to direct the parties to maintain
status quo over the suit property.
5. Mr. Panigrahi, learned ASC submits that admittedly the
suit property is recorded in the name of the Government. In the
past, several encroachment cases were initiated and the father of
the Petitioner has paid penalty admitting his illegal possession. He
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placed reliance upon the case of State of Orissa and another Vs.
Abu Bakkar Habib, reported in 2017 SCC OnLine Ori 37, wherein
it is held at paragraph-12 as under:-
"12. Admittedly, the proceeding under the OPLE Act
was initiated against Adarmani and penalty was imposed.
She paid the same. Thus, she admits the title of the State.
Her possession was not hostile to the real owner and
amount to a denial of her title to the property claimed....."
Therefore, he submits that when the Petitioner has paid penalty in
the encroachment cases starting from 1965-66 to 1978-79, he
cannot claim to be in adverse possession over the suit property.
Further, the land is required for public purpose for construction of
road as well as grazing field for cattle. As such, no injunction
should be granted in respect of the suit property in view of the
decision as relied upon by learned appellate Court in the case of
Ravinder Kaur Grewal Vs. Manjit Kaur, reported in (2019) 8 SCC
729. He, therefore, prays for dismissal of the CMP.
6. Considering the rival contentions of the parties, this Court
finds that the suit land stands recorded in Government Khata and
order of eviction has already been passed against the Petitioner in
Encroachment Case No.63 of 2014. The Petitioner has already
been evicted from a part of the suit property. Thus, the ratio in the
case of Goginath Khatua (supra) is not applicable to the case at
hand as in the said case no eviction proceeding was initiated. It
further appears that the land has been recorded as 'Gochar' and is
meant for being used for public purpose. In view of the above, no
order of injunction can be granted against the true owner, more
particularly when the land is meant for the public purpose.
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7. Accordingly, this Court finds no infirmity in the impugned
orders under Annexures-4 and 6. Hence, the CMP being devoid of
any merit stands dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
