GUNANIDHI NAYAK AND OTHERS Vs. STATE

JUDGEMENT

(1.) For considering the application for temporary injunction in this appeal, I heard the same facts necessary for disposing of the appeal itself. Accordingly, with the consent of parties, I heard the appeal itself since record of the trial court is not necessary.

(2.) Plaintiffs, eighty three in number filed the suit for title, possession and consequential injunction against State of Orissa in respect of slightly more than five acres of land which they claim to be possessing by cultivating the same. Case of plaintiffs as submitted by Mr. Bidyadhar Misra, Advocate is that they were possessing on payment of rent a bigger area including the disputed land which is situated near the river Devi. On compulsory acquisition under the Land Acquisition Act, a portion of the area was taken out of their possession for construction of embankment of River Devi. After construction of the embankment, disputed land remained between the river bed and the embankment. Plaintiffs were cultivating the same on payment of rent to the State. During that period, in the settlement operation, disputed land was recorded in the final record of rights, land was recorded in name of the State Government. Although plaintiffs were continuing to cultivate the same, after change of name in settlement rent is not being accepted from them. When this was continuing, State Government decided to have a fishing harbour in the mouth of river Devi. For construction of the same, earth was being removed from die disputed land and other lands as a result of which there is likelihood of the agricultural land becoming useless. Hence, plaintiffs filed the suit and prayed for temporary injunction. The same having been refused, plaintiff approached this Court in appeal which was disposed of with a direction to consider the question of injunction afresh if another petition was filed. Trial court having refused the prayer of temporary injunction again, this appeal has been filed.

(3.) Assuming all the facts as asserted by the plaintiffs to be correct for the purpose of this application, it is to be examined whether temporary injunction shall be granted. Since a prima facie case is assumed, it is to be examined if there is balance of convenience in favour of the plaintiffs and if plaintiffs would suffer irreparable injury if no temporary injunction is granted. If finding on any one of the questions is given against the plaintiffs, injunction is to be refused.