AFR SK. ASAD ALLI Vs. DHRUBA CHARAN DAS

JUDGEMENT

(1.) This is an intra-Court appeal preferred by the appellant to set aside the order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014 setting aside the order dated 21.01.2014 passed by the learned Civil Judge (Sr. Division), Kendrapara rejecting the plaint filed by the respondents in C.S. No.487/2013.

(2.) The factual matrix of the case in hand is that the ExLandlord, Kiran Kumar Mitra and his co-sharers inducted the grandfather of the appellant as a tenant by accepting rent and salami in respect of Sabik Plot No.352 under Sabik Khata No.228 corresponding to Hal Plot No.642 under Hal Khata No.458 and LR Plot No.537/1020 measuring area Ac. 0.05 decimal. The suit property was converted to Bari from Anabadi land and a house was constructed over the same wherein his family has been living by earning their livelihood from Tin business. In 1949 the appellant's grandfather expired and his son Sk. Wadu (father of appellant) went on possessing the suit property along with the residential house. In a family settlement in 1972 the suit property fell to the share of the appellant whereafter he continued to possess the same as the residence and Tin shop. Consequently, the appellant had acquired occupancy right over the suit property in terms of Section 23 of the Orissa Tenancy Act. When the suit property was wrongly recorded in favour of the State, the appellant filed Title Suit No.219/1997 on 29.07.1997 in the court of Civil Judge (Sr. Division), Kendrapara praying for declaration of his occupancy right over the suit land. The said suit was decreed on contest declaring the title of the appellant over the suit property on 07.11.2000. Against such decree, the State and Tahasildar preferred Title Appeal No.1/2001 which was dismissed on 17.01.2003 declaring the occupancy right of the appellant over the suit property.

(3.) Mr. R.K. Rout, learned counsel for the appellant strenuously urged that the rejection of the plaint vide order dated 21.01.2014 under Order-7 Rule-11 of the CPC being a decree having been done by the learned Civil Judge (Sr. Division), Kendrapara in C.S. No.487/2013 is appealable one. Instead of preferring appeal before the appropriate forum, CMP application filed by the respondents before this Court is not maintainable and if any order is passed by the learned single Judge in CMP No.74/2014, the same is without jurisdiction. More so, in a writ application the error committed by the learned single Judge has to be rectified. Consequently, the appellant seeks to quash the order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014. To substantiate his contention he has relied upon Pravasini Behera v. Sankar Das and seven others, 2008 1 OrissaLR 783.