BALARAM BEHERA Vs. RAMA CHANDRA KAR

JUDGEMENT

(1.) THIS appeal has been filed under the provision of Order -XLIII Rule -1 Sub -rule -(u) of the Code of Civil Procedure against the judgment passed by the learned Civil Judge (Sr. Division), Kamakhyanagar in R.F.A. No.1 of 2010 dated 24.02.2011. The learned Civil Judge (Sr. Division) by the impugned judgment set aside the judgment and decree passed by the learned trial court and remanded the suit to the trial court for fresh disposal in accordance with law with a further direction that the trial court shall frame the seven issues framed by the first appellate court in the impugned judgment as issue numbers 4 to 10 after issue no.3, which was framed by the trial court during trial of the suit. Both the parties were granted liberty to adduce further evidence with regard to the said issues, framed by the learned lower appellate court.

(2.) AS it appears that C.S. No.42/2008/19/2009 was filed by the appellant as plaintiff against the respondent as defendant for grant of permanent injunction, the plaintiffs case in short was that the suit land belongs to the State. The forefathers of the plaintiff reclaimed and possessed it during their lifetime. After them, the plaintiffs father possessed the same with his only brother till his death in 2006. The suit land appertains to plot no.407 constituting an area of Ac. 0.124 decimal recorded as jungle and plot no.408 constituting an area of Ac. 0.326 decimal also recorded as jungle, in village Natakata, Bhuban, under Khata No.427. Plaintiff claimed that he being the legal heir of his father -Dhani Behera is continuing in possession over the same with his mother and his brother. This fact has been noted in the remarks column by the Settlement Authority in the record of rights. Basing on the above uninterrupted continuous possession from the time of his forefathers, the plaintiff claimed to have perfected his title by way of adverse possession over the disputed property and he also pleaded to have no cause of action against the State. It was alleged in the plaint that the defendant having no right, title and interest over the land in question threatened to dispossess the plaintiff by propagating publicly, to raise permanent construction over the same and for that purpose gathered materials. It was further alleged that even though an order of status quo was passed by the trial court, the defendant forcibly constructed a wall on suit plot no.408.

(3.) DECIDING the said issues, the learned trial court found that there was a cause of action for filing of the suit. The suit is maintainable without the State as a party. There is no passage existing over plot no.408, the defendant has raised a wall over the said plot no.408 when the order of status quo was in force. The plaintiff has a right to claim injunction on behalf of the other co -sharers also and as per the decision in the case of Bauri and Others V. Natabar Swain and Others, A.I.R. 1982 Orissa 268, the plaintiff having been deprived of his possession during the operation of the order of status quo a relief for recovery of possession can be granted even if such relief has not been asked for along with a relief for permanent injunction.