Orissa High Court
Ramesh Soreng vs Ranjan Soreng on 22 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 91 OF 2023
Ramesh Soreng .... Petitioner
Mr. Soumendra Pattanaik, Advocate
-versus-
Ranjan Soreng .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.03.2023
2. 1. This matter is taken up through hybrid mode.
2. Judgment dated 26th November, 2022 (Annexure-3)
passed in F.A.O. No.19/04 of 2020-22 is under challenge in this
CMP, whereby dismissing the appeal learned Additional District
Judge-cum-Special Judge, Vigilance, Sundargarh confirmed the
order dated 14th October, 2020 (Annexure-2) passed by learned
Civil Judge (Senior Division), Sundargarh in I.A. No.35 of 2020
(arising out of C.S. No.179 of 2020) thereby restraining the
present Petitioner from entering upon the suit land and
interfering with the possession of the Opposite Party.
3. Mr. Pattanaik, learned counsel for the Petitioner submits
that admittedly, Regina Soreng, W/o-Agapit Soreng is the
recorded tenant in respect of the suit land. During her life time,
said Regina Soreng executed a Will in favour of the Petitioner.
After her death, the Petitioner becomes the absolute owner of the
suit land by virtue of the said Will. But the Opposite Party, who
has no manner of right, title and interest over the suit land, filed
C.S. No.179 of 2020 claiming right, title and interest over the
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suit property and for permanent injunction. Along with the
plaint, the Opposite Party filed an application under Order
XXXIX Rules 1 and 2 C.P.C. in I.A. No.35 of 2020 with a
prayer to restrain the Petitioner from entering upon the suit land
and creating disturbance in the peaceful possession of the
Opposite Party. Due to outbreak of COVID-19 and closure of
the Court, the Petitioner could not know about the developments
in the proceeding. The Court was re-opened on 13th October,
2020 and on the very next day, i.e., 14th October, 2020, ex parte
order under Annexure-2 was passed by learned trial Court
granting the prayer made by the Opposite Party. Being
aggrieved, the Petitioner preferred appeal. The appellate Court
holding that there is no material on record to show that the
Petitioner has any right, title and interest or possession over the
suit property, dismissed the appeal. Hence, this CMP has been
filed.
4. It is submitted by Mr. Pattanaik, learned counsel for the
Petitioner that by virtue of the Will executed by the true owner,
the Petitioner filed Mutation Case No.1295 of 2009 before the
Tahasildar, Sadar Sundargarh and the R.O.R. of the suit land
was corrected in his name. Subsequently, on the application of
the Opposite Party the order of mutation was recalled. The said
order is under challenge before the appellate Court and is
pending for consideration. While recalling the order of
mutation, the Tahasildar, Sadar Sundargarh directed to restore
the land in its original khata. As such, the land was again
recorded in the name of Regina Soreng. Had any opportunity
been given to the Petitioner to establish that he is in possession
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over the suit property, the order under Annexure-2 would have
been otherwise. Learned appellate Court did not take into
consideration the aforesaid material aspect and passed the
impugned order under Annexure-3. He, therefore, prays for
setting aside the impugned order under Annexure-3.
5. Considering the submission made by learned counsel for
the Petitioner and on perusal of the impugned order under
Annexure-3, it is apparent that the Petitioner could not produce
any document in support of his possession over the suit property.
It appears that the Petitioner claims title over the property by
virtue of a Will stated to have been executed by the recorded
tenant. On basis of the said Will, the Petitioner had in fact filed
a mutation case and the mutation R.O.R. was prepared in his
name. Subsequently on the objection of the Opposite Party, the
said order was recalled and the case land was restored to its
original khata. The Opposite Party is admittedly the legal heir of
the recorded tenant namely, Regina Soreng. The Petitioner, who
claims title over the land by virtue of a Will ought to have come
out with a strong case that he is in fact in possession over the
suit property by virtue of the said Will. When the Opposite
Party produces rent receipt in respect of the suit land to assert his
possession, the Petitioner could not produce any scrap of
document to establish that he is in possession over the same.
After death of the recorded tenant, the Opposite Party, who is a
successor of the recorded owner, has succeeded to the suit
property. On the basis of the Will, the Petitioner claims a
departure from the natural line of succession. Thus, the
Petitioner has to prima facie establish that the Will executed by
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Regina Soreng was given effect to. The Petitioner has already
filed written statement in the case. But Mr. Pattanaik, learned
counsel for the Petitioner could not produce any document to
prima facie show that the Petitioner is in possession over the suit
property.
6. In that view of the matter, I find no infirmity in the
impugned order under Annexure-3.
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
