MINATI SAHOO Vs. BAISHNAB RAUT

JUDGEMENT

(1.) THIS Miscellaneous Appeal under Order 33, Rule 1 (r) of the Code of Civil Procedure (for short 'CPC') is directed against the order dated 10 4 2001 in Misc. Case No. 23 of 2001 arising out of Title Suit No. 3 of 2001 passed by the Civil Judge (Senior Division), Bhubaneswar rejecting the prayer for temporary injunction under Order 39, Rules 1 and 3 read with Section 151, CPC.

(2.) APPELLANT is the plaintiff in the suit. She filed the suit for declaration of her title, confirmation of her possession and permanent injunction in respect of the disputed homestead land meansuring Ac. 0.250 decimals out of a total area of Ac. 2.322 deciamals appertaining to plot No. 6, Khata No. 191 of Mouza Chandrasekharpur, district Khuda. She prayed for temporary injunction against defendant respondent Nos. 1 and 2 till the disposal of the suit alleging that they were trespassers. Defendant Nos. 3, 4 and 5 are the vendors who sold the suit land to the plaintiff, vide registered sale deed Nos. 4279 dated 28 10 1998 and 5762 dated 29 12 2000 and delivered possession of the same.

(3.) DEFENDANT Nos. 1 and 2 filed their joint written statement in the suit. According to them, the plaintiff having no right, title, interest of possession over the suit land has no locus standi to file the suit against defendant Nos. 1 and 2, who are the agents of the rightful owner of the suit land. As per the averments in the written statement, one Tilotama Samal of village Diha Balarampur under Patkura police station in the district of Kendrapara was the rightful owner of the suit land and Sarat Chandra Biswal, Adikanda Patra, Samahita Bal, Saswat Bal, Satyanarayani Jena and others purchased the suit land and other lands from her and the said purchasers have entered into an agreement for same with one Saubhagya Kumar Misra, the Managing Director of Aradhana Property Development (P) Ltd. and have also executed a power of attorney to deal with the lands. Defendant Nos. 1 and 2 are thus the authorised agents of the aforesaid firm to develop the suit land to the extent of Ac. 1.160 decimals out of plot No. 6 of Khata No. 91. At the instance of mischievous persons of the village, defendant Nos. 3,4 and 5 created false and fabricated sale deeds by impersonating Tilotama Samal and at their instance the plaintiff has filed the suit for illegal gains. It is further stated that Tilotama Samal, wife of Dhanurdhar Sama! of village Diha Balarampur was Khandayat by caste and she along with one Uchhab Sahu, son of Basu Sahu of village Damana took lease of agricultural lands measuring Ac.8.018 decimals appertaining to plot Nos. 5 and 6 of Khata No. 1 of village Chandrasekharpur from Raja Madhusudan Deo of Patia and both of them remained in possession of the said lands duly paying rent to the Patia estate. Subsequently when the Raja of Kanika became the proprietor of Patia estate, rent was paid to him . After vesting of Patia estate with Government in 1952,said Tilotama Samal and Uchhab Sahu were recognised as tenants in Vesting Case No. 3176 of 1959 60 by the Tahsildar, Sadar Cuttack after proper enquiry. But in 1973 Settlement, the said two plots were recorded in the name of the State against which Uchhab Sahu filed Settlement Revision Case No. 3176 of 1975 before the Board of Revenue, Orissa in respect of his land measuring Ac. 4.50 decimals appertaining to Hal Plot No. 309 and also for the land jointly belonging to him and Tilotama Samal which was recorded under Hal Khata No. 472 . According to the defendants, since said Tilotama Samal was not available, uchhab Sahu had to file the case on behalf of both of them. In the last Settlement, the lands were recorded separately in the names of Uchhab Sahu and Tilotama Dei, vide Objection Case No. 7040. Plot No. 6/1939 of Hal Khata No. 50 measuring Ac. 2.320 decimals and Hal Plot No. 5 measuring Ac. 1.190 was recorded in the name of Uchhab Sahu and Plot No. 6 of Hal Khata No. 191 measuring Ac. 2.320 decimals and Hal Plot No. 5/1938 measuring Ac. 1.790 decimals were recorded in the name of Tilotama Dei in the year 1989. Defendant Nos. 3 to 5 are not the legal heirs of Tilotama Samal, wife of Dhanurdhar Samal of Patkura police station in the district of Cuttack and hence they have no right to alienate any part of the land belonging to said Tilotama Samal. Tilotama Samal died on 19:3 1992 at Cuttack leaving behind her four sons as her heirs On 11 10 1985 Tilotama had alienated Ac.1.160 decimals of land appertaining to Hal plot No. 6 in favour of Sarat Chandra Biswal, Saswati Bal, Sambit Bal, Adikanda Patra, Priyadarson Das and Siprarani Jena and they got their lands mutated in their names, Tilotama Samal also alienated Hal Plot No. 5/1938 in the year 1987 in favour of some persons who have got their names mutated. Defendant Nos. 3 to 5 preferred Mutation Appeals bearing numbers 25/93 to 30/93 against the mutation cases being allowed in favour of the six purchasers named above, but all the appeals were dismissed. After that, defendant Nos 3 to 5 fabricated false documents in order to grab the property recorded in the name of Tilotama Samal and they falsely claimed to be the legal heirs of Tilotama Samal, being the sons of Nata Samal, Younger brother of late Dhanurdhar Samal. Defendant Nos. 3 to 5 were 'Gola' by caste and not 'Khandayat' having title as 'Sasmal' whereas the real owner Tilotama was 'Khandayat' by caste. On the abovegrounds, the defendants prayed for dismissal of the suit . They also filed their objection to the petition for temporary injunction.