PREMANANDA SWAIN Vs. BIDYADHAR SWAIN

JUDGEMENT

(1.) CHALLENGING the Order Dated 16.05.2013 passed by the Learned Civil Judge (Senior Division), Athagarh in I.A. No. 31 of 2013, arising out of C.S. No. 67 of 2013, rejecting the petition filed by the Plaintiff -Petitioner under Order 39, Rule 3 of the Code of Civil Procedure (in short, 'C.P.C.') vide, the present petition has been filed. The short fact of the case is that the Plaintiff -Petitioner filed a suit for permanent injunction against the Defendant -Opp. Party claiming right, title & interest over the plot No. 171, area of Ac.0.10 dec, Khata No. 73, Kisam -Gharabari, Mouza -Karakamal under Athagarh Tahsil. It is stated that the property having been inherited from Bhobani Swain & he being the successor of the same, has been paying rent. After the death of Bhobani, he has construed a house on the said land & has been staying therein. It is the admitted case of the Plaintiff -Petitioner that the Defendant -Opp. Party is the owner of plot No. 170, where he resides in a thatched house, which is situated adjacent to the plot of the Plaintiff -Petitioner. It is stated by the Plaintiff -Petitioner that towards east of the plot & adjacent to the plot of the Defendant -Opp. Party, he left a vacant portion for maintenance of his building & also used the same as the path way to his bari. On 26.3.2011 Defendant -Opp. Party objected to the Plaintiff for the first time not to come over the suit land while the Plaintiff attempted to repair his house by putting a ladder etc. on the suit land. The matter went to the village panchayat & the village panchayat decided in favour of the Plaintiff -Petitioner & directed the Defendant -Opp. Party not to disturb the Plaintiff -Petitioner's possession. Since the Defendant -Opp. Party did not obey the direction of the village panchayat & continued with the disturbance in interfering with the possession of the Plaintiff in respect of the suit land, the Plaintiff -Petitioner filed the suit.

(2.) THE case of the Defendant -Opp. Party is that he is the owner in respect of Plot No. 170, Khata No. 12 of Mouza -Karakamal under Athagarh Tahasil, which is an ancestral property & he is in possession of the same peacefully & plot No. 170 is adjacent to the plot No. 171 belonging to the Plaintiff. Defendant -Opp. Party is constructing his residential house over plot No. 170, Khata No. 12 which is well within his boundary & as such, there is no manner of encroachment of any part of plot No. 171. In order to cause harassment, the Plaintiff -Petitioner has filed a suit against him & sought for an ex parte order of injunction from the Court below.

(3.) WHILE entertaining the Writ Petition, this Court by Order Dated 24.06.2013 in Misc. Case No. 12726 of 2013 directed the parties to maintain status quo over the suit land till the next date.