JOGINATH KHATUA Vs. BIRA AND ORS.

JUDGEMENT

(1.) Order dated 25.10.2008 passed by the learned Civil Judge (Senior Division), Athagarh in I.A. No. 11 of 2008 rejecting an application under Order 39 Rules 1 and 2, CPC filed by the plaintiff is under challenge in this appeal.

(2.) Civil Suit No. (I) -19/08 was filed for declaration of right, title, interest and possession over the suit land as well as for permanent injunction. Appellant as the plaintiff contended that the suit land, i.e., plot No. 562 appertaining to Khata No. 288 in Mouza Kandhabareni measuring an area of Ac.0.64 decimal in the district of Cuttack is a piece of government land. The plaintiff occupies the suit land constructing his residential house from the day of Baisakhya Purnima, 1973 openly, uninterruptedly and peacefully to the knowledge of the true owner. Due to such occupation, Encroachment Case No. 7/05 -06 was initiated against him by the Tahasildar Narsighpur which was culminated in imposing penalty of Rs. 100/ - as well as assessment dues of Rs. 100/ - on the plaintiff. However, the plaintiff continued to possess the suit land without any interruption. The defendants/respondents who are some of the co -villagers having a greedy eye over the suit land created disturbance in the possession of the plaintiff. They threatened to set fire to the residential house of the plaintiff and demolish foundation the plaintiff had laid to construct a pucca building. Thus, finding no other alternative, the suit was filed for the aforesaid relief. Along with the plaint, he filed the aforesaid I.A. to restrain the defendants/respondents from entering upon the suit land and from creating disturbance in the peaceful possession of the plaintiff. Defendants -respondents filed their objections denying the allegation made in the I.A. They contended that plot No. 559 situates adjacent to plot No. 562, which is being encroached by the plaintiff. The villagers decided to construct an Anganwadi Kendra of Village Kandhabareni over the said plot of land and accordingly after obtaining permission from the Tahasildar, Narsinghpur Anganwadi Centre was constructed over plot No. 559. The plaintiff in order to grab plot No. 559 along with plot No. 562 (suit plot) filed the suit falsely alleging that the answering defendants/respondents were creating disturbance over the suit land. They further submitted that the plaintiff has no cause of action and the suit is not maintainable. Further, balance of convenience does not lean in favour of the plaintiff. Since the suit plot belongs to the Government, the plaintiff -appellant would not sustain any irreparable loss or injury if the order of injunction is refused. Accordingly, they prayed for dismissal of the I.A.

(3.) Taking into consideration the rival contentions of the parties, learned Civil Judge passed the impugned order.