PRAFULLA KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners have filed the present writ petition with the following prayers : "It is, prayed therefore, that this Hon'ble Court may graciously be pleased to :-

(2.) As per the averment made in the writ petition, in the year 1945, the father of the petitioners, Gourishankar Panda constructed a house over plot No.1407, appertaining to khata No.19, of mouza-Kapileswar, measuring an area Ac.0.43 decs. The ruler of Gangpur State, on the application made by Gourishankar Panda granted reclamation Hukumnama in his favour in respect of the said land in the year 1947 vide Annexure-1. Thereafter, he went on paying rent to the Gountia of the village till abolition of Gounti system under the Orissa Merged States Laws. His tenancy right ought to have been reflected by entering his name in the R.O.R., but it was not done. In the Hal settlement his name was recoded as forcible possessor in the remark column against Hal plot No.1210, khata No.362 measuring an area of Ac.0.40 decs, and Hal plot No.1211, Khata No.361 measuring an area of Ac.0.3 decs. In 1976 Gourishankar Panda filed Misc. Case No.262 of 1976, which was re-numbered as Misc. Case No.483 of 1983 and again as Mutation Lease Case No.585 of 1991 before the Tahasildar, Sundargarh for mutation of the disputed land in his favour. The same having been dismissed, the petitioners,all of whom are sons and daughter of late Gourishankar Panda, filed T.S. No.2 of 1994 before the Civil Judge (Senior Division), Sundargarh for declaration of their right, title and interest over the disputed land and for restraining the defendants from demolishing the house situated over it. The suit having been dismissed on 26.7.1996, they preferred Title Appeal No.27 of 1996 before the District Judge, Sundargarh. Simultaneously, they filed a petition under Order 39 Rules 1 and 2 C.P.C. to prohibit the opp.parties from demolishing their house. In pursuant to the said petition, learned District Judge ordered to issue notice to the opp.parties to show cause as to why the order of injunction would not be issued against them. On 6.11.1996 notices were served on the respondents at about 12.00 noon, where after the Respondents took steps to demolish the house of the petitioners by a bulldozer of the L&T Company. They did not even allow the petitioners to remove the articles and lives stocks from their house, for which one cow and two she-goats were killed. The appeal preferred by the petitioners before the District Judge was allowed on 4.10.2002. It is the further case of the petitioners that no eviction proceeding in respect of the disputed land was ever initiated against the petitioners or their father. Hence the writ petition, with the prayers stated earlier.

(3.) In their counter affidavit opp.parties 2 to 4 contended that Hal plot No.1210 measuring an area of A.0.10 decs, under khata No.362 and Hal plot No.1210/3150 measuring an area of A.0.3 decs, under holding No.1 of village Karamdihi were recoded in the Government holding. Since the petitioners were found to be in unauthorized possession of the same, Encroachment Case Nos.418 of 1992 and 1092 of 1992 were initiated against them by the Tahasildar, Sadar, Sundargarh. After observing all formalities, eviction orders were passed against the petitioners in both the cases. For strengthening and widening of State Highway No.10 between Rourkela and Sambalpur, there was need for construction of a traffic square over the disputed land. Since the petitioners did not vacate the said land, their house was demolished. It is further-contended by opp.party Nos.2 to 4 that the notice of the learned District Judge, Sundargarh was received by them on 6.11.1996 at 4.00 P.M., before which the demolition work had already been completed. Under such circumstances the opp.parties pressed to dismiss the writ petition.