L. Mohapatra, J.
1. This appeal is directed against the order dated 23.11.2005 passed by the Civil Judge (Sr. Division) 1st Court, Cuttack in I.A. No. 291 of 2005 rejecting the application of the plaintiff-appellant filed under Order-39, Rules 1 and 2 of Code of Civil Procedure to restrain the respondent from making any construction over the suit land till disposal of the suit.
2. The case of the appellant is that she is the owner in possession of the suit land having right, title and interest over the same. The further case of the appellant is that the land has been recorded in the name of her late husband in the consolidation R.O.R. as well as settlement R.O.R. covering an area of Ac.0.038 decimals. Taking advantage of the entry in mutation R.O.R. in respect of plot No. 681 as Ac.0.022 decimals construction work is being taken up. The further case is that the respondent managed to get nine decimals of land recorded in respect of plot No. 681 and has managed to mutate the same in her favour and is trying to take up new construction on the nine decimals of land. On the above ground, the suit was filed and application for injunction was also filed.
3. An objection was filed by the respondent to the effect that the plot No. 681 originally covered an area of Ac.0.22 decimals in the record of rights and had been recorded in the name of Charulata Das. She purchased the said land from Charulata Das under a registered sale deed and has paid rent after mutating the same in her name Her further case was that she had obtained permission for construction of a residential house and that the land had been permanently given on lease by the State Government. She also pleaded that she is in possession of entire Ac.0.22 decimals of land and has taken up construction work after obtaining due permission.
4. The learned Civil Judge (Sr.Division), Cuttack on analysis of the documentary evidence produced before him, rejected the petition for injunction.
5. Shri S.R. Patnaik, learned Counsel appearing for the appellant submitted that the Consolidation R.O.R. as well as Settlement R.O.R. clearly indicate that the appellant is the title holder of Ac.0.38 decimals of land and she had paid rent in respect Ac.0.38 decimals up to 2002-2003. Out of the said Ac.0.38 decimals, the vendor of the respondent had added 9 decimals in plot No. 681 belonging to her and though plot No. 681 was originally covering an area of Ac.0.13 decimals, by adding 9 decimals out of land belonging to the appellant in the said plot, the area was enhanced to Ac.0.22 decimals and, accordingly, mutation of R.O.R. was prepared. It is the specific case of the appellant that she is in possession of the entire Ac.0.38 decimals of land including 9 decimals, which has been illegally added to plot No. 681 and has paid the rent up to 2002-2003 for the entire Ac.0.38 decimals of land. Shri Patnaik further contended that since the appellant is in possession of Ac.0.38 decimals of land and 9 decimals have been illegally added to the plot No. 681 from the land belonging to the appellant, the respondent party should not be allowed to make any construction over the said 9 decimals of land till disposal of the suit.
6. Mrs. P. Nayak, learned Counsel appearing for the respondent, on the other hand, submitted that the respondent was in possession of the entire Ac.0.22 decimals of land under Plot No. 681. After purchasing the same she is also in possession of the same. She has also submitted that the lease has been granted in favour of the respondent by the State Government in respect of the said land and after obtaining due permission, construction of residential work has been started. According to her, the respondent being in possession of the Ac.0.22 decimals of land and the construction work having been started, the balance of convenience lies in her favour and the appellant has no prima facie case to establish.
7. From the impugned order, it is clear that the learned subordinate Civil Judge (Sr. Division) was of the view that the settlement R.O.R. and Consolidation R.O.R. indicate that the husband of the appellant is recorded to be the owner of Ac.0.38 decimals of land and rent in respect of the same has been paid up to 2002-2003. However, the rent for the year 2003-2004 has been paid for Ac.0.29 decimals only. He also observed in the impugned order that out of Ac.0.38 decimals, 9 decimals have been added to plot No. 681 and in the mutation R.O.R. the area in respect of plot No. 681 has been indicated as Ac.0.22 decimals. In view of such observation, which is based on record, it is clear that 9 decimals out of the land occupied by the appellant has been added to the area covered under plot No. 681 to make it Ac.0.22 decimals. Therefore, it cannot be said that the appellant does not have a prima facie case to establish.
8. So far as the possession is concerned, both the parties claimed to be in possession of the aforesaid 9 decimals of land. The appellant has produced the rent receipts up to 2002-2003 to show that she had paid for the Ac.0.38 decimals where the rent for the year 2003-2004 only shows that she had paid rent for Ac.0.29 decimals.
9. From the above, one can take a view that the petitioner having not paid rent for Ac.0.38 decimals for the year 2003-2004, possibly she was not in possession of the said 9 decimals of land from that year. Once the Court arrives at such conclusion, the claim of the opposite party that she is in possession of the entire Ac.0.22 decimals of land is to be accepted from the year 2003-2004.
10. So far as the balance of convenience is concerned, if the opposite party is allowed to make permanent construction over the entire Ac.0.22 decimals of land and ultimately the petitioner succeeds in the suit, she may not be in a position to use the land in the manner she wants to use. I am, therefore of the view that if the residential house is constructed by the respondent covering an area of Ac.0.13 decimals of land out of the Plot No. 681 excluding 9 decimals which are in dispute, no prejudice shall be caused to either party. I, accordingly quash the impugned order and direct that it will be open for the respondent to make such construction over the plot No. 681 covering an area of Ac.0.13 decimals, excluding 9 decimals which has been added to the said plot in the mutation R.O.R.
The appeal is accordingly disposed of.