SECRETARY, ROTARY CLUB Vs. SRI DEBAKANTA RAY

JUDGEMENT

(1.) Assailing the order passed by the learned District Judge, Puri in F.A.O. No. 40 of 2008 arising out of the order dated 13.5.2008 in the Interim Application No. 48 of 2008 of the learned Civil Judge (Jr. Divn.), Puri (Annexures-4 and 3 respectively), the present petitioner has approached this Court by invoking the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

(2.) The present opposite party as plaintiff had instituted Civil Suit No. 71 of 2008 praying for decree of permanent injunction restraining the present petitioner who was the defendant in the said suit from raising any construction or obstructing the right of user of plaintiff over the 'B' Suit Schedule property claiming that he had purchased the 'A' Suit Schedule property by two registered sale deeds on 24.5.2000 from Smt. Binapani Sahoo. According to the plaintiff after purchasing the suit property he got the same mutated in his name and constructed a three storied building which has been let out to Saint Xavier School where the school is running. It is the further case of the plaintiff that abutting the 'A' schedule property there is a road which has been described as 'B' schedule property and the same has been recorded as a road (RASTA) in the settlement papers since 1927. The said road is used for ingress and egress to the schedule 'A' property as a natural right. But the Revenue Authorities changed the 'Kissam' of the schedule 'B' property from 'Road' to 'Patita' and leased out the same to Secretary, Rotary Club, Puri, namely, the present petitioner Club which came to the knowledge of the plaintiff when the petitioner Club started making constructions over the 'B' schedule property. It is the further case of the plaintiff that along with the suit the plaintiff also filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code (hereinafter referred to as 'C.P.C'.) praying for ad interim order of injunction which was registered as I.A. No. 48 of 2008. The present petitioner as defendant opposite party on being noticed appeared in the suit and filed his objection. Thereafter, the learned Civil Judge (Jr. Divn.), Puri after hearing the parties by his order dated 13.5.2008 directed maintenance of status quo over the 'B' Schedule suit land (Annexure-3). The said order was challenged by the aggrieved defendant-opposite party before the learned District Judge, Puri in F.A.O. No. 40 of 2008 and the learned District Judge while affirming the order of the learned Civil Judge (Jr. Divn.), Puri in I.A. No. 48 of 2008 dismissed the aforesaid appeal.

(3.) The present opposite party in his counter affidavit averred that the 'B' Suit Schedule property is communal in nature and before grant of lease to the petitioner Club it belonged to the State and the same is being used as a road always as because the adjoining land owners including the plaintiff and others have a natural right to use the same. The specific stand of the present opposite party is that a communal land cannot be alienated as the right of way is attached to the land and not with the title. It is also the stand of the plaintiff that if the petitioner Club would be permitted to proceed with the construction over the 'B' Suit Schedule property, irreparable loss would be caused to the students and staff and that will badly hinder the functioning of the school standing over the 'A' Suit Schedule property as the 'B' schedule property is being used as the access to the school and the right of user of the school road is to be protected. Besides that it is the case of the opposite party that when the courts below have directed to the parties to maintain status quo over the 'B' Suit Schedule property and the impugned orders are speaking orders and when a Revision Petition is pending i.e. Civil Revision No. 3 of 2010 before the District Judge, Puri challenging the rejection of the prayer of the petitioner-defendant for rejection of the plaint under Order 7, Rule 11 C.P.C, the impugned orders at Annexures-3 and 4 should not be disturbed in the greater ends of justice and that too in view of the specific observation of this Court while disposing of O.J.C. No. 894 of 2001 giving liberty to the parties to resort to the Civil Proceeding where the facts are to be properly traced about the easementary right and the alleged road in question and decision is to be taken in accordance with law.