The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.272 of 2025 Keshab Chandra Das Keshab Chandra Das CORAM: …. Petitioner Mr. Ramesh Chandra Mishra, Advocate -versus- …. Opposite Party Order No. 01. HON’BLE MS. JUSTICE SAVITRI RATHO ORDER 13.03.2025 (Through Hybrid mode) This application under Article 227 of the Constitution of India has been filed by the plaintiff-appellant with the following prayer:- “It is therefore, prayed that this Hon’ble court may graciously be pleased to admit this CMP, issue notice to the opp. Party and after hearing the parties, set-aside the order dated 28.09.2024 passed by the learned Additional District Judge, Salipur in I.A. No. 39 of 2022 (Annexure- circumstances of the case for ends of justice.” 2. Perusal of the records reveals that order dated 28.09.2024 has been passed in F.A.O. 39 of 2022 and not in I.A. No. 39 of 2022 by the learned Additional District Judge, Salipur. By this order, the learned Additional
Legal Reasoning
District Judge has confirmed the order dated 28.10.2024 passed by the learned Civil Judge (Jr. Divn.), Salipur in I.A. No. 93 of 2020 arising out of Civil Suit No. 91 of 2020 by the learned Civil Judge (Jr. Divn.), Salipur Page 1 of 11 dismissing the application under Order 39 Rule 1 and 2 by the plaintiff. The order dated 28.10.2022 passed by the learned Civil Judge (Jr. Divn.), Salipur has not been challenged in the CMP. 3. Be that as it may, the operative portion of the order dated 28.10.2022 passed by the learned trial court is extracted below:-
Decision
“In view of the above fact and circumstances of the case and after going through submission of both the parties, it is seen that the suit property is recorded in the father’s name of petitioner and the petitioner is one of the co-sharer of the suit land and he has filed the original civil suit with a prayer for pre-emption, which proves that he has good prima facie case in his favour. However, in this case it can’t be decided whether he is entitled for pre-emption right or not and the same can be decided at the time of hearing of the suit by adducing evidences. It is further seen that in order to pass the injunction order only prima facie case is not sufficient and the party must prove that the balance of conveniencę leans in his favour and if the injunction order is not passed, he will suffer irreparable loss and injury. In the present case while considering the balance of convenience and irreparable loss, it is seen that the opposite party has purchased an area of Ac0.011dec out of suit land with consideration and due delivery of possession and he pleaded that they have used the purchased area only for ingress and outgress from his residential house to the government road and the said area is his only passage and no alternative Page 2 of 11 passage is available. It is farther seen that the opposite party has also mutated the suit land in his name vide Mutation ROR vide Khata No.447/303 which proves that he is in possession of the Khata No.447/303 which proves that he is in possession of the suit land. Considering the above aspect it is of the opinion that the opposite party is in better footing than the petitioner and the balance of convenience leans in favour of the opposite party. In the present case if any restrained order is passed over the suit land, the opp.party will suffer irreparable loss and injury, than the petitioner.” 4. Challenging this order, F.A.O. No. 39 of 2022 had been filed by the plaintiff in the court of the learned Additional District Judge, Salipur and the same has been dismissed on 28.09.2024. The operative portion of the order dated 28.09.2024 is extracted below:- “……The trial court is found to have gone to the deep of the issue in between and found that the suit property is recorded in the father’s name of petitioner and the petitioner is one of the co-sharer of the suit land and he has filed the original civil suit with a prayer for pre-emption, which proves that he has good prima facie case in his favour. The trial court also of the view right of pre-emption can be decided at the time of hearing of the suit by adducing evidences. Further opined that in order to pass the injunction order only prima facie case is not sufficient and the party must prove that the balance of convenience leans in his Page 3 of 11 favour and if the injunction order is not passed, he will suffer irreparable loss and injury. Admittedly in the present case, it is seen that the O.P-respondent is using the ece house to the government road and the fact is not disputed. So suit property only for ingress and outgress from his residential considering the above aspect the trial court has expressed discretion and has opined that the O.P/respondent would suffer Preparable loss if injunction is granted. No evidence is on record that the O.P is constructing or obstructing appellant or raising any permanent structure or changed the land to the inconvenience of the appellant, hence the comparative mischief that the O.P will suffer appears more if injunction is granted, hence there appears exercise of judicial discretion by the trial court basing upon on sound judicial principle, which requires no interference in appeal, hence it is ordered.” 5. The brief fact of the case of the petitioner-appellant is that, the petitioner-appellant along with D.l to D.6 (as per the plaint) are the original owners of suit property bearing Plot no. 115, Area Ac.0.088dec under Consolidation Khata No.442, of Mouza-Javampur. The property has not been partitioned and the same |s their homestead property that the petitioner-plaintiff and other co-sharers are possessing the same as per their convenience by mutual arrangement and the dwelling house of Page 4 of 11 D.2 situates over the suit land. The D.l without knowledge and consent of petitioner has alienated an area of Ac0.011 dec out of his share in the suit property to opp. party vide RSD no. l723, dated 16.08.2019 who is an outsider and basing upon the said sale deed, the opp. party is now trying to enter into the joint possession. he plaintiff - petitioner had filed an application U/o-39, Rule-l ‘and 2 of C.P.C praying to restrain the defendant opp. party from coming upon the suit land and creating any disturbances in the peaceful possession of petitioner by changing the nature and character of the suit land till disposal of the suit. 6. Mr. R.C. Mishra, learned counsel for the petitioner submits that since the learned trial court found that the petitioner has a prima facie case, it could not have dismissed the I.A. holding that the balance of convenience lies in favour of the defendant. He further submits that the parties being Bengalis are governed by the Dayabhaga School of Law and as per Article 350, the defendant should have filed a suit for partition for possession of the share brought by him. In support of his submission, he relies on the following two decisions of the Supreme Court and Article 350 of the Dayabhaga Law :- i) M.V.S. Manikayala Rao vrs. M. Narsimhaswami and Others reported in AIR 1966 SC 470 (paragraph 5). Page 5 of 11 ii) Balwant Singh & Anr. Etc vs Daulat Singh (Dead) by L.R.s and Others reported in (1997) 7 SCC 137 (paragraph 21). 7. The provisions of Order 39, Rule 1 and 2 are extracted below : - ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary injunctions 1. Cases in which temporary injunction may be granted.—Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Page 6 of 11 Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach.—(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction , on such terms as to the duration of the injunction , keeping an account , giving security , or otherwise , as the Court thinks fit .” 8. In paragraph 21 of the decision in the case of Balwant Singh (supra), the Supreme Court has held as follows: “21. We have considered the rival submissions and we are of the view that Mr. Sanyal is right in his contention that the courts were not correct in assuming that as a result of mutation no. 1311 dated 19.7.54, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Smt. Sawarni’s Page 7 of 11 case, Pattanaik J., speaking for the Bench has clearly held as follows:- "Mutation of a property in the revenue record does not create or extinguish title nor has it nay presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment." In paragraph 5 of its judgment in M.V.S. Manikayala Rao (supra), the Supreme Court has held as follows: “5.……….Now, it is well settled that the purchaser of a coparcener’s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession “would date from the period when a specific allotment was made in his favour”: Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at p. 188” (AIR 1953 SC 487 at p.491). It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defedants in the suit could never have been in adverse possession of the properties as against him as possession Page 8 of 11 could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case of Vyapuri v. Sonamma Boi Ammai, ILR 39 Mad 811: (AIR 1916 Mad 990 (2) FB).” Article 350 of the Dayabhaga Law is extracted below: “350.Purchaser Where a fractional share in a property, which forms part of a joint estate has been sold, the purchaser may sue for partition of that property only and for possession of the share brought by him, without asking for partition of the whole joint estate.” 9. In the case of Balwant Singh (supra), two appeals had been preferred against the judgment/decree of the High Court in second appeal. Referring to the case of Smt. Sawarni vrs. Smt. Inder Kaur & Other reported in 1996 (6) SCC 223, the Supreme Court has held that Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title and it only enables the person in whose favour mutation is ordered to pay the land revenue in question. In the case of M.V.S. Manikayala Rao (supra), the parties belong to the Mitakshara School of Hindu Law while it is the case of the petitioner that the parties belong to the Dayabhaga school. Page 9 of 11 The reference to Article 350 on partition of Dayabhaga Law provides that it is open to the purchaser to ask for partition of the property which has been bought by the purchaser and which may form part of the joint family property for possession of the share brought by him instead of asking for partition of the whole joint estate. 10. The learned trial court has held that the plaintiff - petitioner has a prima facie case but whether the plaintiff is entitled for pre-emption right or not can only be decided at the time of hearing of the suit after adducing evidence. The learned trial court has however held that the balance of convenience was in his favour of the defendant as the defendant has bought land and is in occupation of the same. 11. The two decisions and Article 350 relied on by the learned counsel for the petitioner do not in any way render the reasons given by the trial Court to be perverse or unreasonable. I am not satisfied that any interference is called for in the impugned orders for which the CMP is liable to be dismissed. 12. As the suit property relates to joint family property and the plaintiff has filed the suit for pre-emption, while dismissing the CMP, it is observed that the learned trial court shall not grant unnecessarily adjournment and shall proceed to dispose of the suit expeditiously. Page 10 of 11 13. Liberty is also granted to the plaintiff to prefer a fresh application under Order – 39, Rule 1 and 2, if at any time there is any apprehension that the defendant is likely to alienate or sell the property. Such application shall be decided in accordance with law on its own merit, without being influenced by the dismissal of I.A. No. 39 of 2022. puspa (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 25-Mar-2025 18:29:18 Page 11 of 11