The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.377 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sujana Rout …. Appellant Bishnu Behera(dead) and others …. Respondents -versus- Appeared in this case:- For Appellant For Respondents : : Mr. D.K. Mohanty, Advocate Mr. N.P. Patra, Advocate (For the Respondent No.1) Mr. N.K. Mohanty, Advocate (For the Respondent Nos.2(a) to 2(g) CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 01.12.2025 / date of judgment :23.12.2025 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. // 2 // 2. The appellant in this 2nd appeal was the defendant no.1 before the trial court in the suit vide T.S. No.25 of 1989 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.30 of 1993.
Legal Reasoning
The respondent no.1 in this 2nd appeal was the sole plaintiff before the learned trial court in the suit vide T.S. No.25 of 1989 and respondent no.1 before the learned 1st appeal court in the 1st appeal vide T.A. No.30 of 1993. The respondent nos.2 and 3 in this 2nd appeal were the defendant nos.2 and 3 before the trial court in the suit vide T.S. No.25 of 1989 and respondent nos.2 and 3 before the learned 1st appeal in the 1st appeal vide T.A. No.30 of 1993. 3. The suit of the plaintiff(respondent no.1 in this 2nd appeal) vide T.S. No.25 of 1989 before the trial court against the defendant no.1(appellant no.1 in this 2nd appeal) was a suit for permanent injunction in alternative eviction. 4. According to the plaintiff, he(plaintiff) and defendant nos.2 and 3 are brothers and they are three sons of Lakshman Behera. 5. The suit properties described in Schedule of the plaint is the joint and undivided properties of the plaintiff and defendant nos.2 and 3. The said suit properties have not been partitioned/divided between them Page 2 of 15 // 3 // through any metes and bounds partition. Till yet, the suit properties had/have been continuing as their joint and undivided properties. The suit properties have been recorded jointly in the name of the plaintiff and defendant nos.2 and 3 in the last Hal Settlement under Khata No.344, Plot No.882, as their joint and undivided dwelling house. The plaintiff and defendant nos.2 and 3 belong to Scheduled Caste community, whereas, the defendant no.1 being a non-scheduled caste person as well as a stranger to their family. The said defendant no.1 purchased the suit properties illegally from the defendant no.2 through sale deed dated 04.04.1988 without any permission under Section 22 of the OLR Act, 1960 from the competent authority, although she(defendant no.1) had/has got no right of joint possession in the undivided dwelling house with the plaintiff and defendant nos.2 and 3. After execution of such sale deed dated 04.04.1988, when the plaintiff came to know about the same, he(plaintiff) requested defendant no.1 not to enter into their undivided dwelling house and not to make any construction on any portion of the same, to which, the defendant no.1 did not agree, but, started construction forcefully and illegally in a portion of the suit properties, for which, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.25 of 1989 against the defendant no.1 arraying his two brothers, i.e., defendant nos.2 and 3 as pro-forma Page 3 of 15 // 4 // defendants praying for restraining the defendant no.1 permanently from coming upon to their joint and undivided dwelling house, i.e., to the suit properties and to evict the defendant no.1 from the suit properties, if it is found that, she(defendant no.1) is in possession over the same along with other reliefs, to which, he(plaintiff) is entitled for. The defendant nos.2 and 3, i.e., two brothers of the plaintiff were set ex parte. 6. The defendant no.1 contested the suit of the plaintiff vide T.S. No.25 of 1989 by filing her written statement taking her stands inter alia therein that, there was partition of the suit plots between the plaintiff and defendant nos.2 and 3 prior to her purchase on dated 04.04.1988 and the plaintiff and defendant nos.2 and 3 were possessing their allotted properties separately. While her vendor, i.e., defendant no.2 was in separate possession in respect of his allotted properties, he(defendant no.2) first requested plaintiff and defendant no.3 to purchase the suit properties, but, when they(plaintiff and defendant no.3) did not agree for purchasing the same, then, he (defendant no.2) sold the suit properties to her(defendant no.1), which was under his exclusive possession. She(defendant no.1) purchased the same properly and lawfully from the defendant no.2 through sale deed dated 04.04.1988 on payment of proper consideration amount and she(defendant no.1) had/has been possessing Page 4 of 15 // 5 // the same lawfully being the exclusive owner thereof. For which, suit for permanent injunction in alternative for eviction filed by the plaintiff against her(defendant no.1) is liable to be dismissed. Therefore, the suit of the plaintiff is not maintainable against her(defendant no.1). So, the suit of the plaintiff is liable to be dismissed against her(defendant no.1). 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the learned trial court in the suit vide T.S. No.25 of 1989 and the said issues are:- I S S U E S 1. Whether the suit is maintainable? 2. Whether the plaintiff has any cause of action to file the suit? 3. Whether the valuation of the suit is correct? 4. Whether there was any partition of the undivided joint family dwelling house of the plaintiff, defendant nos.2 and 3 prior to the execution and registration of sale deed dated 04.04.1988 executed by the defendant no.2 in favour of the defendant no.1 and if the partition was acted upon? 5. To what relief, the plaintiff is entitled to? 8. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant no.1, he(plaintiff) examined one witness on his behalf, i.e., the plaintiff himself as P.W.1 and relied upon the documents vide Exts.1 to 6 including the joint RoR of the suit properties under Khata No.344 vide Ext.1. Page 5 of 15 // 6 // On the contrary in order to defeat/nullify the suit of the plaintiff, the defendant no.1 examined five witnesses on her behalf including her as D.W.5 and relied upon several documents on her behalf vide Exts.A to J including the sale deed dated 04.04.1988 vide Ext.A. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court answered all the issues except issue no.3 in favour of the plaintiff and against the defendant no.1, as the issue no.3 was not pressed and basing upon the findings and observations made by the learned trial court in the issue nos.1, 2, 4 and 5 in favour of the plaintiff and against the defendant no.1, the learned trial court decreed the suit of the plaintiff on contest against the defendant no.1 and ex parte against the defendant nos.2 and 3 and passed decree for eviction against the defendant no.1 from the suit land directing her(defendant no.1) to hand over the possession of the suit land to the plaintiff within three months, failing which, the plaintiff may get her(defendant no.1) evicted through the process of the court from the suit properties and injuncted her (defendant no.1) from coming upon the suit land as well as from proceeding with the construction of the house thereon as per its judgment and decree dated 18.02.1993 and 03.03.1993 respectively assigning the reasons that, Page 6 of 15 // 7 // “it is established through appreciation of oral and documentary evidence on the basis of the pleadings of the parties that, the suit land is the undivided dwelling house of the plaintiff and defendant nos.2 and 3 and the suit properties have not been partitioned/divided between the plaintiff and defendant nos.2 and 3 through any metes and bounds partition till yet. The defendant no.1 is a stranger to the family of the plaintiff and defendant nos.2 and 3 and she(defendant no.1) has no right to possess the joint and undivided dwelling house, i.e., the suit properties with the defendant nos.2 and 3 and the permission for selling the suit properties, to the defendant no.1, which was sought for by the defendant no.2 on dated 27.07.1985 was not allowed as per order dated 25.02.1988 vide Ext.6 passed by the SDM, Cuttack and the SDM, Cuttack has dropped the permission Misc. Case under Section 22 of the OLR Act, 1960, which was sought for by the defendant no.2, but, still then, the defendant no.1 has purchased the suit properties through RSD dated 04.04.1988, for which, the defendant no.1 being a stranger is not entitled under law to possess the suit properties jointly with the plaintiff and defendant nos.2 and 3 as, the same is the undivided dwelling house of the plaintiff and the defendant nos.2 and 3 and as the defendant no.1 is in illegal possession over the suit properties, though, she had no right to enter into the joint possession of the plaintiff and defendant nos.2 and 3 Page 7 of 15 // 8 // in the same, for which, the learned trial court passed the decree for eviction and injunction against the defendant no.1 applying the 2nd part of Section 44 of the T.P. Act, 1882.” 10. On being dissatisfied with the aforesaid judgment and decree passed by the learned trial court in the suit vide T.S. No.25 of 1989 against the defendant no.1, she(defendant no.1) challenged the same preferring the 1st appeal vide T.A. No.30 of 1993 being the appellant against the plaintiff arraying him as respondent no.1 and also arraying the defendant nos.2 and 3 as respondent nos.2 and 3.
Legal Reasoning
After hearing from the learned counsel for the appellant(defendant no.1) and the learned counsel for the respondents(plaintiff no.1 and defendant nos.2 and 3), the learned 1st appellate court dismissed the 1st appeal vide T.A. No.30 of 1993 appellant(plaintiff) as per its judgment and decree dated 15.09.1997 and 25.09.1997 respectively concurring/confirming the findings and observations made by the learned trial court in the suit vide T.S. No.25 of 1989. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the defendant no.1 vide T.A. No.30 of 1993, she (defendant no.1) challenged the same preferring this 2nd appeal being the appellant against the plaintiff arraying him(plaintiff) as Page 8 of 15 // 9 // respondent no.1 and also arraying the defendant nos.2 and 3 as respondent nos.2 and 3. 12. When, during the pendency of this 2nd appeal, all the respondents, i.e., plaintiff and defendant nos.2 and 3 expired, then, their legal heirs have been substituted as respondents in their respective places. 13. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e., :- (i) Whether Section 7 of the OLR Act, 1960 shall apply to the homestead property situated in Urban Area? (ii) Whether Section 44 of the T.P. Act, 1882 can be invoked at the instance of the co-sharer of the suit properties against the defendant no.1? (iii) Whether the suit properties involved in this matter shall treated as an undivided qua dwelling house of the plaintiff and defendant nos.2 and 3 within the meaning of Section 44 of the T.P. Act, 1882 in order to invoke the provisions of Section 44 of the T.P. Act, 1882 for passing a decree as per the prayer sought for by the plaintiff? 14. I have already heard from the learned counsel for the appellant(defendant no.1) and the learned counsels for the respondent no.1(plaintiff) and respondent nos.2 and 3(defendant nos.2 and 3). Page 9 of 15 // 10 // 15. So far as the 1st formulated substantial question of law, i.e., Whether Section 7 of the OLR Act, 1960 shall apply to the homestead property situated in Urban Area is concerned, It is the specific findings of the learned courts below on the basis of the order dated 25.02.1988 as per Ext.C passed by the SDM, Cuttack that, permission under Section 22 of the OLR Act, 1960, which was sought for by the defendant no.2 for selling the suit properties to the defendant no.1 was not allowed. When, the permission for selling the suit properties sought for by the defendant no.2 under Section 22 of the OLR Act, 1960 in favour of the defendant no.1 was not allowed by the SDM, Cuttack as per order dated 25.02.1988 vide Ext.C and when, the said order has not been varied/altered/set aside, then at this juncture, it cannot be held that, Section 7 of the OLR Act, 1960 shall not be applicable to the suit properties. 16. So far as the 2nd and 3rd formulated substantial question of law, i.e., Whether Section 44 of the T.P. Act, 1882 can be invoked at the instance of a co-sharer of the suit properties against the defendant no.1 and whether the suit properties involved in this matter shall be treated as an undivided qua dwelling house within the meaning of Section 44 of the T.P. Act, 1882 in order to invoke the provisions of Section 44 of the T.P. Page 10 of 15 // 11 // Act, 1882 for passing a decree as per the prayer sought for by the plaintiff are concerned, The defendant no.1 has made her claim on the basis of the sale deed dated 04.04.1988 vide Ext.A executed by the defendant no.2 in favour of the defendant no.1 in respect of the suit properties. It has been specifically indicated in the sale deed dated 04.004.1988 vide Ext.A that, the suit properties were the undivided joint properties of the vendor(the defendant no.2) along with his two brothers, i.e., plaintiff and defendant no.3 and they(plaintiff, defendant nos.2 and 3) are possessing the same equally and separately through partition between them and in the last settlement, the said suit properties have been recorded separately in the name of the plaintiff, the defendant nos.2 and 3 and the suit properties have been specifically recorded in the last Hal Settlement in the name of her vendor, i.e., defendant no.2. 17. It is the current findings of the learned trial court and the learned 1st appellate court that, the aforesaid reflections made in the sale deed vide Ext.A relied by the defendant no.1 regarding the partition of the suit plots between her vendor(defendant no.2) and his two brothers, i.e., plaintiff and defendant no.3 are not correct. Page 11 of 15 // 12 // Because, there is no legally admissible document for establishing any partition of the suit plots between the plaintiff and defendant nos.2 and 3. 18. Likewise, the averments made in the sale deed vide Ext.A regarding the preparation of the separate RoR of the suit properties in the name of the vendor(defendant no.2) in the last Hal Settlement is also not correct. Because, the Hal RoR vide Ext.1 of the suit properties stands jointly in the name of the plaintiff and defendant nos.2 and 3 under Khata No.344 having its Kisam Gharabari. 19. That apart, though, it is the case of the defendant no.1 that, the suit plots were partitioned amicably between the plaintiff and defendant nos.2 and 3 prior to her purchase in presence of the local gentries, but, no legally admissible evidence has been filed or proved on behalf of the defendant no.1 showing partition of the suit plots between the plaintiff and defendant nos.2 and 3. 20. Therefore, on the basis of the oral and documentary evidence corroborating the pleadings of the plaintiff, it has been held concurrently by the learned trial court as well as leaned 1st appellate court that, the suit plots had/have not been partitioned/divided between the plaintiff and defendant nos.2 and 3 through any metes and bounds partition and the suit plots are the joint and undivided dwelling house of the plaintiff and Page 12 of 15 // 13 // defendant nos.2 and 3. The defendant no.1 being a stranger to the family of the plaintiff, defendant nos.2 and 3, she(defendant no.1) is not entitled under law to enter into the joint possession of the undivided dwelling house of the plaintiff, defendant nos.2 and 3, i.e., into the suit properties. Therefore, both the courts decreed the suit of the plaintiff for eviction and permanent injunction against the defendant no.1 applying 2nd part of Section 44 of the T.P. Act, 1882. The proper application of the 2nd part of the Section 44 of the T.P. Act, 1882 against the stranger purchaser, i.e., against the defendant no.1 in respect of the undivided dwelling house of the plaintiff, defendant nos.2 and 3 by the learned trial court and the learned 1st appellate court finds support from the ratio of following decisions :- (i) In a case between M.V.S. Manikayala Rao vrs. M. Narasimhaswami and others : reported in AIR 1966 S.C.-470 that, when there is no partition, no co-sharer can sell any specific share of the property. The transferee is not entitled to any part of the property. (ii) In a case between Dorab Cawasji Warden vrs. Coomi Sorab Warden and others : reported in AIR 1990 S.C.-867 that, the meaning of undivided family and dwelling house have the same meaning in both sections, i.e., Section 44 of the T.P. Act, 1882 and Section 4 of the Partition Act, 1893. Two ingredients are necessary for the application of the 2nd part of the T.P. Act, 1882, i.e.,:- (i) Dwelling house belong to undivided family; and Page 13 of 15 // 14 // (ii) Transfer to the person, who is not a member of the family. “If the aforesaid two ingredients are fulfilled, mandatory injunction can be granted against the stranger purchaser in respect of the dwelling house, if the stranger purchaser entered into the possession of the same.” 21. In this suit/appeal at hand, the aforesaid two ingredients of the 2nd part of Section 44 of the T.P. Act, 1882, i.e., (i) the suit property is the dwelling house of the plaintiff and defendant nos.2 and 3 and (ii) the so- called purchaser, i.e., defendant no.1 is not a member of the family of the plaintiff, defendant nos.2 and 3 have been duly established. 22. As per the concurrent findings of the learned trial court and the learned 1st appellate court through proper appreciation of oral and documentary evidence of the parties, it has been held that, the defendant no.1 has entered into the joint possession of the undivided dwelling house of the plaintiff, defendant nos.2 and 3, i.e., into the suit properties, for which, the decree for eviction passed against the defendant no.1 by way of mandatory injunction against her(defendant no.1) by the learned trial court and learned 1st appellate court cannot be held as improper. 23. So far as the possession of the other purchasers of the suit properties from the co-sharers of the plaintiff is concerned, The controversies in this suit and appeal are between the plaintiff and defendant no.1. Any so-called purchaser of any of the co-sharer of Page 14 of 15 // 15 // the suit properties has not been arrayed as a party in the suit / appeal and their matters are not the matters for adjudication in this suit/appeal at hand. For which, no finding can be given in respect of the same. Because, the same is not the matter for adjudication in this lis between the parties. 24. When, as per the discussions and observations, it is held that, the concurrent findings and observations made by the learned trial court and the learned 1st appellate court for passing the decree of eviction and permanent injunction against the defendant no.1(appellant in this 2nd appeal) in respect of the suit properties applying the provisions of 2nd part of the Section 44 of the T.P. Act, 1882 are not erroneous, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellant(defendant no.1) does not arise. 25. Therefore, there is no merit in this 2nd appeal filed by the appellant(defendant no.1). The same must fail. 26. In result, this 2nd appeal filed by the appellant (defendant no.1) is dismissed on contest, but without cost. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 23rd of December, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 27-Dec-2025 15:04:47 Page 15 of 15