KUNIA SETHI Vs. SIBA SETHI

JUDGEMENT

(1.) THIS appeal is against the order dated 17.12.2011 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No.31 of 2011 arising out of C.S. (1) No.45 of 2011, rejecting the prayer for interim injunction with regard to plaint schedule 'C' property.

(2.) THE appellants are the plaintiffs -petitioners before the learned lower court. The interim relief sought for is with respect to plaint schedule 'C' property which forms part of Hal Plot No.319 under Hal Khata No.229. The Hal Plot is with an area of Ac.0.057. Schedule 'C' property consists of Ac. 0.020 in area. Appellants make a prayer to restrain respondent No.3 from coming over schedule 'C' land, changing its nature and character and creating 3rd party interest therein till disposal of the suit.

(3.) THE respondents in their show cause filed before the learned trial court have contended that R -3 is a bonafide purchaser in respect of schedule 'C' property and he is also in possession of the same. The suit itself, with regard to the above property, is barred by Section 67 of the Orissa Land Reforms Act. They have denied that the appellants are residing over plot No.319 and respondent Nos.1 and 2 over plot No.364 by constructing their own houses. Their further case is that the Sabik Khata corresponding to Hal Plot No.364 stood recorded in the name of Nilei Sethi and the corresponding Hal Khata stands recorded in the name of Beleswar Sethi, son of Nilei Sethi. Beleswar Sethi, executed a registered gift deed on 3.7.1982 alienating 20 decimals of land out of Hal plot No.364 in favour of his sister Osha Dei, the mother of the appellants, over which the appellants are residing. The appellants have no right, title, interest and possession in respect of the rest part of the suit property. With regard to Hal Plot No.319, of which plaint schedule 'C' is a part, it is contended that its corresponding Sabik Khata was recorded in the name of one Trailokya Mohanty and others and Nilei Sethi was a sikim tenant in respect of the same. During Hal Settlement, names of Jogendra Mohanty and others have been recorded as owner and Beleswar, son of Nilei Sethi, is recorded as Sikim tenant in respect of the same. Respondent Nos.1 and 2, sons of Beleswar filed an application before the Tahasildar (Sadar), Cuttack in OLR Case No.152 of 2006 to declare them as rayats in respect of the same land and after proper inquiry, respondent Nos.1 and 2 have been declared as rayats and the same land now stands recorded in their names. Subsequently, they have sold a part of it to R -3 under registered sale deed dated 28.5.2007 followed by delivery of possession. This property is the schedule 'C' property. After purchasing the piece of land, R -3 has mutated his name in respect of the same. Under such circumstances, it is claimed, R -3 should not be restrained in any manner.