ROHITA KUMAR BEURA Vs. PRAMILA SAMANTARAY AND ORS.

JUDGEMENT

(1.) ASSAILING the order dated 12.11.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No. 329 of 2006, refusing to stay the further proceeding of the interim application filed under Order 39 Rule 1 and 2 CPC till disposal of O.L.R. Case No. 8 of 2007, the instant petition is filed under Article 227 of the Constitution of India.

(2.) OPPOSITE parties as plaintiffs filed a suit, for declaration of right, title and interest over suit schedule property and for permanent injunction restraining the defendant from coming over the suit land, in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which is registered as C.S. No. 398 of 2006. The case of the plaintiffs, in a nut -shell, is that the suit schedule land was recorded in the names of Siba Sahoo and others with forcibly note of possession of the defendant in the remarks column of the Hal Settlement R.O.R. published in the year 1989. To press the legal necessity, Siba Sahoo and others alienated the land in favour of Ramachandra Samantaray, the husband of the plaintiff No. 1 and father of plaintiff No. 2 by means of registered sale deed No. 4781 dated 17.11.1989 for a valid consideration and thereafter delivered possession. Thereafter, Ramachandra Samantaray filed an application under Section 15(b) of the Orissa Survey and Settlement Act before the Commissioner, Land Records and Settlement, Orissa, Cuttack (hereinafter referred to as "the Commissioner") to record the land in his favour and delete the note of forcible possession of the defendant, which was registered as R.P. Case No. 5341 of 1994. The Commissioner allowed the application and directed the petitioner to move before the Tahasildar, Sadar, Cuttack for mutation. Thereafter, Mutation Case No. 1647 of 1995 was instituted before the Tahasildar, Sadar, Cuttack. As per the direction of the Commissioner, the Tahasildar prepared the R.O.R. and deleted the forcible possession of the defendant from the remarks column. Assailing the order of the Commissioner, the defendant filed a writ petition being OJC No. 16815 of 1998 before this Court, on the ground that in a proceeding under Section 145 Cr.P.C. his possession was declared, which is pending adjudication. It is further stated that the plaintiffs filed OLR Case No. 63 of 2006 before the Tahasildar, Sadar, Cuttack under Section 19(1) of the Orissa Land Reforms Act (hereinafter referred to as "the OLR Act") for partition. The Tahasildar passed the order and prepared the R.O.R. in the names of the plaintiffs separately.

(3.) DURING pendency of the suit, plaintiffs filed an application under Order 39 Rule 1 and 2 CPC, which is registered as I.A. No. 329 of 2006. The defendant filed an application to stay further proceeding of the said interim application till disposal of OLR Appeal No. 8 of 2007 pending before the Sub -Collector, Sadar, Cuttack. By order dated 12.11.2007, the learned trial court rejected the application.