Smti Sarala Baidya v. Sakthi Vel

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR] *** C.O/15/2021 SMT SARALA BAIDYA ... PETITIONER

VERSUS

SHRI SAKTHI VEL ... RESPONDENT/OP Mr. Arul Prasanth, Advocate ... for the petitioner Mr.K.M.B Jayapal, Advocate ... for the Respondent/OP March 16, 2022 [SR] Item No.1 The present revisional application under Article 227 of the Constitution of India, is at the instance of Smt Sarala Baidya, defendant of O.S.No.18 of 2021 being aggrieved by an order of dismissal of Misc.Appeal No.11 of 2021 by the learned District Judge, Andaman and Nicobar Islands, whereby the learned District Judge has been pleased to affirm the order of status quo with regard to the nature, character and possession of the suit land appertaining to Survey No.34/1/15 measuring an area of 0.0200 hectares situated at Village Lambaline under Port Blair Tehsil till the disposal of the suit passed by the learned Civil Judge Junior Division-I, Port Blair in O.S.No.

18 of 2021 on 27.04.2021. The facts necessary for determination of the present application in gist is that there existed dispute between Smti Jayanti, the wife of the opposite party/plaintiff with Smt Medona Baisal the erstwhile owner of land bearing survey No.34/1/14 before the Tehsildar, Port Blair in RC No.728/TPB/2014. The Tehsildar, in its order dated 1st May, 2014, has held that during demarcation of the land bearing survey No.34/1/14 area 200 sq.mtrs to be under the occupation of Smt Jayanthi wife of the present opposite party/Sakthi Vel and thereby ordered that Jayanthi who alleged to have acquired interest in the land bearing survey No.

one Smt Zubaida Bibi to remove the unauthorized construction and to deliver the vacant possession of the land of survey no. 34/1/15 on 4th February, 2014, Being aggrieved, the wife of present opposite party has preferred the first revenue appeal being FRA No.06 of 2014 before the Sub Divisional Officer, South Andaman. The Sub Divisional Officer, South Andaman, by passing an order dated 30th March, 2015 has been pleased to accept the demarcation report submitted by the Tehsildar, Port Blair and directed to initiate a revenue proceeding against Dr.Alex Mathew son of Shri Mathew Joseph for encroaching land measuring 47 sq.mtrs belonging to Smt Zubaida Bibi and another 200 sq.mtrs of government land. Being aggrieved by such order of Sub Divisional Officer, wife of the present opposite party preferred a Second Revenue Appeal No.05 of 2015 before the Principal Secretary (Revenue), A & N Administration.

The Principal Secretary (Revenue) vide order dated 5th January,2016 refused to interfere with the order passed by the Sub Divisional Officer, South Andaman and refused to grant any relief to the wife of the present opposite party. It also appears that wife of the present opposite party has filed a review application before the Principal Secretary (Revenue), who by an order dated 1st September,2016 refused to interfere with the findings made by the Sub Divisional Officer, South Andaman and rejected the review application.

When the Tehsildar failed to deliver vacant possession of survey No.34/1/14 to Smt Medona Baisal then, she filed writ petition being WP No.450 of 2016. While disposing of the writ petition, the Hon'ble Coordinate Bench of this Court directed the Tehsildar to implement its own order passed in RC No.728/TPB/2014 for eviction of Smt Jayanthi from her land. The wife of present opposite party appears to have filed MA No.019 of 2017 challenging the order passed by the Hon'ble Single Bench. The Hon'ble Division Bench of this High Court disposed of the appeal directing the Tehsildar, to implement the order passed by him in RC No.728/TPB/2014 within a period of one month from date after affording an opportunity of hearing to all concerned by passing the order dated 30th August, 2017.

In compliance of the order of the Division Bench, the Tehsildar seems to have delivered vacant possession of the encroached land of Survey No.34/1/14 to its rightful owner, the present petitioner. It is also seen that the wife of present opposite party has initiated a proceeding against the Tehsildar for causing damage to her moveable properties at the time of demolition of illegal construction raised by her on the land of present petitioner. Now, by filing the O.S.No.18 of 2021, the opposite party has filed the case against the present petitioner who is the actual owner of the Survey No.34/1/14 for permanent injunction restraining the present petitioner, her men, servant and agent claiming any right title over the land of Survey No.34/1/15 and for temporary injunction.

In view of the discussion above, it has become clear that the present opposite party or his wife was in illegal possession of land bearing SurveyNo.34/1/14 and they had to face eviction from such land belonging to the present petitioner in view of the order passed by the revenue authorities as well as by the order of the Hon'ble High Court.

It has also come on record that the land, which the opposite party alleged to have purchased from Smt Zubaida Bibi, at the time of demarcation, was in occupation of one Mathew Joseph. The order of the Principal Secretary (Revenue) also reflects that the Mathew Joseph and his son are in illegal occupation of 47 Sq.mtrs of land which belonged to Smt Zubaida Bibi, the predecessor-ininterest of the present opposite party, is under occupation of Dr.Alex Mathew S/o Mathew Joseph. It also appears that Dr.Alex Mathew has also encroached 200 sqmtrs of government land. From the order of the Tehsildar which has reached its finality and from the orders of the competent authorities, it appears that the land which legally belong to the present petitioner was occupied by the wife of the present opposite party.

The land which they have alleged to have acquired from Smt Zubaida Bibi by virtue power of attorney (in view of Suraj Lamp & Industiries Pvt. Ltd vs. State of Harayana & Anr, the sale of immovable property through general power of attorney is not valid) is under the possession of one Dr. Alex Mathew.

No doubt, the opposite party has filed O.S.No.18 of 2021 in respect of land bearing Survey No.34/1/15 against the present petitioner but in reality such land appears to be under the possession and occupation of one Dr. Alex Mathew.

Therefore, this court is of view how the learned Court below without taking into consideration such facts which have been specifically pleaded in the memorandum of appeal No.MA No.11 of 2021 passed the order impugned. Prima facie, the order impugned suffers from materials irregularities and liable to be set aside. In fact this Court of the view the cause of plaintiff/opposite party lies against Dr.Alex Mathew and not against Smt Salara Baidya. Accordingly, C.O.No.15 of 2021 is disposed of. Connected application, if any, is disposed of. Interim order, if any, stands discharged.

There will be no order as to costs.

All parties to act in terms of the copy of the order downloaded from the official website of this Court. Urgent certified copy of this order, if applied for, be given to the parties, upon compliance of all formalities, on priority basis. (Kesang Doma Bhutia, J. )