Orissa High Court
Debraj Mohanty & Others vs Labani Dei ...... Opp. Party on 22 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.550 of 2021
I.A. No.1329 of 2022
An application under Articles 226 and 227 of the Constitution of
India)
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Debraj Mohanty & Others ...... Petitioners
-Versus-
Labani Dei ...... Opp. Party
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : Mr. G. Mukherji, Sr. Advocate with
Mr. A. Mishra, Advocate
For Opp. Parties : Mr. M.K. Pati, Advocate
___________________________________________
CORAM: JUSTICE SASHIKANTA MISHRA
JUDGMENT
22nd of August, 2025
SASHIKANTA MISHRA, J.
The petitioners are defendants in C.S. No.745 of
2019 pending in the Court of learned Civil Judge (Senior
Division) Jajpur. In the present application, they question
the correctness of order dated 07.09.2021 passed by
learned District Judge, Jajpur in FAO No.4 of 2020. Said
FAO was filed by the present Opposite Party-Plaintiff
against the order dated 18.01.2020 passed by the Trial
Court in I.A. No.342 of 2019 rejecting her application for
injunction. Learned District Judge, by the impugned
order, set aside the order of the Trial Court and allowed
the appeal by restraining the defendants from raising any
further construction over the suit land till disposal of the
suit.
2. The facts, relevant only to decide the present
application are, the plaintiff has filed the aforementioned
suit seeking declaration of her right, title and interest
along with that of proforma-defendant Nos.4 to 9 over the
suit property and that preparation of MS ROR in respect of
'A' Schedule Land in the name of defendant Nos.1 to 3 is
wrong and illegal. It is claimed that the suit property was
originally recorded in the name of Sakhi Dei in C.S. R.O.R.
of 1928. Said Sakhi Dei alienated Lot 1 and 2 property of
the schedule to one Laxmidhar Baisakh vide RSD dated
01.10.1931. Said Laxmidhar Baisakh sold the property to
one Yasobant Mohanty vide RSD dated 22.07.1944. Lot
No.3 property of the schedule was purchased by one
Krushna Chandra Pati from Sakhi Dei as auction
purchaser on 16.09.1946 in an execution case. Krushna
Chandra Pati sold the said property to Yasobant Mohanty
vide RSD dated 27.06.1949. Thus, Yasobant Mohanty
became the owner of the schedule-A property. The plaintiff
and proforma-defendant Nos.4 to 8 being the successors
of Yasobant Mohanty filed the suit for declaration and
correction of MS ROR.
3. The case of the defendant Nos.1 to 3 as per their
written statement and counter claim is that the so called
sale deeds had never been acted upon and that the
property stands recorded in their names in the Hal ROR.
Sakhi Dei had acquired Ac.0.43 and 5 Kadi land vide RSD
dated 22.12.1910. She never sold her property to any
person. The sale deeds claimed to have been executed by
her are fictitious and void documents. Defendant Nos.1 to
3 are the successors of Sakhi Dei. The Hal ROR was
therefore, prepared in their names, which was never
challenged by the plaintiff or any other party at any point
of time. The defendants filed Demarcation Case No.37 of
2019 before the Tahasildar, Rasulpur and accordingly
demarcation was done on 02.11.2019. The plaintiff and
the proforma-defendants have no manner of right over the
suit property. On the other hand, defendant Nos.1 to 3
have constructed a building over the suit land up to 5 feet
from the plinth level and for further construction have
stacked the construction materials. The plaintiff initiated a
criminal proceeding against the defendants for which they
have stopped construction.
4. The plaintiff also filed an application being I.A.
No.342 of 2019 to restrain the contesting defendants from
entering upon the suit property, from raising any
construction, putting fence and from changing the nature
and character of the suit land. The contesting defendants
filed objection claiming that they are the lawful and
recorded owners of the suit property being the grandsons
of Sakhi Dei. The so called sale transactions effected by
Sakhi Dei are claimed to be false and fabricated. The sale
deeds were never acted upon. The mother of the contesting
defendants, Laxmi Mohanty and the defendants filed
Appeal Case No.1602 of 2001 in the Court of Settlement
Officer against Kanhu Charan Mohanty, husband of the
plaintiff. Said appeal was allowed. In view of the order
passed in the appeal the Hal ROR of the disputed property
was prepared in favour of the defendants and their mother
in the year 2005, which was never challenged before any
forum. The defendants have constructed a building up to
five feet from the plinth level and have stacked
construction materials like bricks, cement, iron rod, chips
and sand for further construction. The plaintiff or the
proforma-Opposite Parties are not in possession.
5. After hearing both sides and on consideration of
the pleadings and facts of the case, the trial Court took
note of the fact that the original ownership and possession
of Sakhi Dei is an admitted fact. Further, in MS ROR, the
suit land stands recorded in the names of the contesting
defendants. The ROR has presumptive value. On the other
hand, the plaintiff has not adduced any evidence that the
sale deeds relied upon her were acted upon. The
defendants produced rent receipts to show that they are in
possession. The Trial Court therefore, held that the
plaintiff did not have a prima facie case nor the balance of
convenience leaned in her favour, rather while restraining
the defendants, it would cause irreparable loss to them.
The I.A. was thus dismissed.
6. The plaintiff carried appeal to the District Court.
Learned District Judge held that settlement records do not
confer or extinguish title. On the other hand, some of the
sale deeds relied upon by the plaintiff are more than thirty
years old and therefore, unless declared void they shall be
held to have conferred title on the plaintiff. The finding of
the trial Court that the sale deeds had not been acted
upon was not accepted by the Appellate Court. It was thus
held that the comparative mis-chief will be more against
the plaintiff if the defendants are allowed to raise further
construction. The balance of convenience leans in favour
of the plaintiff and she would suffer irreparable loss in
case no order of injunction is passed. The appeal was thus
allowed by restraining the defendants from raising any
further construction till disposal of the suit.
7. Being aggrieved, the contesting defendant Nos.1
to 3 have preferred the present application.
8. Heard Mr. G. Mukherji, learned senior counsel
with Mr. A. Mishra, learned counsel for the defendant-
petitioners and Mr. M.K. Pati, learned counsel for the
plaintiff-Opposite Parties.
9. Mr. Mukherji would argue that when the
disputed property admittedly stands recorded in the name
of the defendants, who succeeded to such property by way
of inheritance from their grandmother, who was the
original recorded owner and said recording was never
challenged by the plaintiff or any other party within the
period of limitation, the statutory presumption of
correctness attached to it cannot be diluted. The plaintiff
simply relies on some old sale deeds which were never
acted upon. The vendees of the said sale deeds never took
any steps to mutate the property in their names, which
fortifies the contention that the sale deeds were never
acted upon. On the other hand, the trial Court found that
the contesting defendants are in possession. They have
raised construction up to plinth level and unless they are
permitted to raise further construction, it would cause
them serious prejudice.
Mr. Mukherji further submits that his clients are
ready to swear an affidavit that they would not claim any
equity if permitted to raise construction. Mr. Mukherji has
relied upon a judgment of this Court in the case of
Soubhagya Kumar Dash v. Sulekha Das 2014 (supp.1)
OLR 648 and of the Delhi High Court in the case of
Raman Hosiery Factory, Delhi and Others Vs. J.K.
Synthetics Ltd. And Others AIR 194 Delhi 207 in
support of his contentions.
10. Per contra, Mr. M.K. Pati would argue that when
both parties are claiming title, it is necessary to preserve
the suit property as it is till disposal of the suit as
otherwise, it would create unnecessary legal
complications. Mr. Pati further argues that as between the
MS ROR and sale deeds, which are more than seventy-
eight years old, the later would have more value. In any
case, entry in ROR cannot confer title on any party.
11. Before delving into the merits of the rival
contentions, it would be apt to mention that having regard
to the opposing pleas taken by the parties regarding the
stage of construction said to have been made over the
disputed property, this Court, by order dated 22.07.2025,
on consent of both the parties appointed an Advocate
Commissioner Mr. Tushar Kumar Mishra to physically
inspect the suit property and to submit a report regarding
the stage of construction. Accordingly, the learned
Advocate Commissioner visited the spot and after
conducting inspection in presence of both parties
submitted a report to this Court along with photographs.
Both parties were permitted to inspect the report and the
photographs in open Court.
12. As already stated, the fight is between the
plaintiff and contesting defendants over title to the suit
property. The plaintiff claims to have acquired title along
with proforma-defendants from Yasobant Mohanty as his
successors. It is common ground that one Sakhi Dei was
the original recorded owner. The contesting defendants on
the other hand, claim title as successors of said Sakhi Dei,
who was their grandmother. While the plaintiffs rely upon
several sale deeds, defendants rely upon the recording in
the MS ROR. The question of title is a matter to be gone
into by the Trial Court in the suit on the basis of evidence
to be adduced by both parties. The present consideration
is with regard to the question as to whether the contesting
defendants are to be permitted to raise further
construction over the suit land. It has been claimed that
they have constructed a building up to plinth level. The
application for injunction was filed by the plaintiff alleging
that on 08.11.2019 the contesting defendants attempted
to create disturbance in the smooth possession of the
plaintiff over 'A' schedule land and that they are in a mood
to raise forcible construction thereon. In the objection filed
by the contesting defendants, it is stated that they have
constructed a building over the suit land up to 5 feet from
the plinth level and for further construction they have
purchased bricks, cement, iron rod, chips and sand which
are stacked nearby the land.
13. The report of learned Advocate Commissioner
mentions that there is no residential house at all and
some old walls were found covered with bushes and area
is covered with water filled with garbage. According to
learned Advocate Commissioner, the walls might have
been constructed six to seven years ago. The dimensions
of the walls have also been given. Learned Advocate
Commissioner has finally opined as follows:-
"I beg to state that neither in I.A. No.304 of 2022 arising out
of CMP No.550 of 2021 nor in I.A. No.342 of 2019 arising out
of CS No.745 of 2019 of the Court of Learned Civil Judge,
Senior Division, Jajpur the petitioner has given the boundary,
property descriptions over which the alleged house has been
constructed for which I asked the petitioners as well as the
Opposite Parties over which portion of Schedule-A property
the alleged house has been constructed. The petitioner and
their advocate so also the Opposite Party and her advocate
stated that the structure has been constructed over some
portion of MS Plot No.2601 & 2601/3342 which is
corresponding of CS Plot No.2421 of Lot-I of Schedule-A and
some portion on Plot No.2602 of Lot-III of Schedule-A but they
are unable to specify the area of the said plot in details.
On consent I have taken the photographs prior to clearing
the bushes and prior to measurement as it seen there is no
residential house at all, and old walls covered with bushes
and water and filled with garbage's, I have taken the
photograph from each side of the said spot, I don't find that it
was used for any purposes in my opinion the said walls
might have constructed prior to six and seven years ago. I
have submitted the photographs for kind perusal of this
Hon'ble Court.
With help of my associates along with the petitioners and
Opposite Party's representative Rajesh Pritam Mohanty in
order to answer the query of this Hon'ble Court, I measured
the spot in presence of the parties, their Advocates,
witnesses and general public and the general public also
helped a lot for measurement and clearing the bushes.
The spot faced to north, a steel iron rusted gate was hanged
with a lock, the length of the gate is 8 ft. 5 inch, the height of
the gate is 4 ft. only."
14. It has not been suggested by any of the parties
that the report of the Advocate Commissioner is any
manner wrong or unacceptable. Thus, this Court finds no
reason to not accept the report of the Advocate
Commissioner. Further, there is no residential house or
half-constructed building over the suit property at all.
From the said report it is quite evident that there is no
evidence of any recent construction having been made.
There is also no mention of any construction materials
being stacked near the place as claimed by the
defendants. The photographs taken by the Advocate
Commissioner suggest that the walls were constructed
some years ago and at any rate, not recently. It is
therefore, difficult to accept that there was any recent
construction of residential house or building up to plinth
level. Further, in the absence of any construction
materials lying near the spot it cannot also be said that
there is any plan to make any construction recently.
15. While it is true that the Court may, without
prejudice to the rights of the parties, permit construction
to be made over the disputed property in case substantial
construction has been made but where construction is at
a nascent stage it would be in the interest of justice to
preserve the property as it is till the rights of the parties
are finally decided in the ongoing litigation. So, permitting
the defendants to make construction would tantamount to
giving them license to make full-fledged construction from
the initial level. It must be kept in mind that both parties
are claiming title. Though, it is stated that the contesting
defendants would not claim equity but if construction is
allowed and the same is completed it would lead to
unnecessary legal complications and also multiplicity of
proceedings. On the contrary, it would enure to the benefit
of both parties if the property is preserved as it is. This
Court is therefore, of the view that learned District Judge
rightly held that construction would change the nature
and character of the suit land, which may put the
defendants in advantageous possession.
16. As regards the judgments cited by Mr. Mukherji,
this Court finds that in Soubhagya Kumar Das(Supra),
this Court, taking note of the fact the roof casting had
been completed held that a half-constructed house would
be beneficial to no party and therefore, balance of
convenience lies in completion of the construction. Said
case can be easily distinguished from the facts of the
present case wherein construction of the walls is at a very
initial stage. The case of Raman Hosiery Factory,
Delhi(supra) can also be distinguished on facts inasmuch
as in the said case it was held that issue of the temporary
injunction would disturb a settled state of dealings
between the parties.
17. Thus, from a conspectus of the analysis of facts,
law, contentions raised and the discussion made, this
Court is of the considered view that the First Appellate
Court committed no error or illegality in restraining the
defendants from making any further construction over the
suit land.
18. Resultantly, the CMP is found to be devoid of
merit and is therefore, dismissed. The suit being of the
year 2021, the trial Court shall do well to try and dispose
of the suit as early as possible preferably, within a period
of eight months from today.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 22nd of August, 2025/ P. Ghadai, Jr. Steno
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack.
Date: 22-Aug-2025 17:38:24
