MADAN JENA Vs. SARASWATI JENA

JUDGEMENT

(1.) This Second Appeal is against the concurrent judgments of the Courts below, i.e., Munsif, Bhubaneswar in O.S. No. 31 of 1981 and Additional District Judge, Bhubaneswar in Title Appeal No. 5/5 of 1983/82 granting decree both of mandatory and perpetual injunction on the basis of the prayer made by the plaintiff in her suit. Admittedly, the defendants 1 and 3 are the co-owners of plaintiffs and therefore, after hearing the appellants the substantial question of law involved in the appeal was framed as follows :- Whether a house constructed by a co-sharer on a homestead which is joint would be sufficient for relief of permanent injunction against another co-sharer who disturbs the possession of the plaintiff-co-sharer?

(2.) Late Kshetrabasi Jena is a co-owner with the defendants and all of them are agnets. Plaintiff No. 1 is the widow and the other plaintiffs are the children of late Kshetrabasi and plaintiff No. 1. The plot under Khata No. 294 which includes plot No. 495, i.e., the suit land, was acquired jointly by the parties and others and recorded as such in the settlement. These are the facts which are not disputed in the suit as per the pleadings of the parties. It is also not disputed that the purchasers including the co-owners are possessing separate patches from such acquired land and each of them have constructed residential structure and a common passage has been left to negotiate with the village road. This assertion in the plaint as has been noted in the impugned judgment, was proved through the admission of the defendants in course of adducing evidence.

(3.) According to the plaintiffs who are the respondents in this second appeal, a portion of the plot from Plot No. 495 which was under possession of Late Kshetrabasi Jena was without a front room being half constructed before his death. Plaintiff No. 1 after being a widow become a helpless woman. She sought the assistance of the defendants and completed that front room by putting thathed roof and used that as a front/passage room. As she did not accede to the illegal demands of the defendant No. 2 to allow him to use that room, the defendants conjointly tried to harass her and in furtherance thereof they put a lock on the entrance of the said passage room putting her into inconvenience for negotiating with the village road through that passage room. As alleged by her, she put a ladder on the backside of her house and scaling over the wall that way and through the premises of adjoining neighbour to the backside, namely Ram Jena, she and her children could manage to negotiate with the public road. That necessitated her to file the suit claiming for mandatory injunction with direction to the defendants to remove the lock from the entrance i.e., the passage room and perpetual injunction for not interfering with her right to use that entrance room as a passage to her house. Though defendants 1 and 2 filed their joint written statement and defendant No. 3 filed a separate written statement but except advancing the plea of denial to the averments in the plaint, no specific case was pleaded by any of them in support of their defence while disowning the claim of the plaintiffs.