The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 19:27:53 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.243 OF 2024 Manjubala Sarangi …. Mr. Satyanarayan Mishra, Advocate -versus- Deba Darshini @ Mohapatra and another …. Opp. Parties Petitioner Mr. Khan Mahmoodul Hasan Niamati, Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 08.05.2024 Order No. 02. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 12th February, 2024 (Annexure-4) passed in FAO No.131 of 2022, whereby learned Additional District Judge, Bhubaneswar dismissing the appeal confirmed the order dated 16th September, 2022 (Annexure-3) passed by learned 2nd Additional Civil Judge, (Senior Division), Bhubaneswar in IA No.01 of 2022 (arising out of CS No.311 of 2022) dismissing an application filed by the Plaintiff-Petitioner under Order XXXIX Rules 1 and 2 CPC. 3. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed with a prayer to declare that the Plaintiff and Defendant Nos.2 to 4 are the LRs and successors of late Ganeswar Dash and late Sitamani Debi, cancellation of the sale deed bearing number 11081833432 dated 24th September, 2018 executed in favour of the Defendant-Opposite Party No.1, to declare that the Defendant No.1 is not a joint account holder with late Ganeswar Dash and to declare that the Plaintiff and Defendant Nos.2 to 4 are entitled to Schedule ‘B’ and ‘C’ properties and not the Defendant No.1 along with other consequential and ancillary Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 19:27:53 reliefs. Along with the plaint, the Petitioner filed IA No.01 of 2022 under Order XXXIX Rules 1 and 2 CPC with a prayer to pass an ad interim order of injunction restraining the Defendant No.1-Opposite Party No.1 from alienating the schedule ‘A’ property and releasing schedule ‘B’ property till disposal of the suit. Learned trial Court rejected the application vide order dated 16th September, 2022 (Annexure 3 series). Assailing the same, the Petitioner preferred FAO No.131 of 2022 which has also been dismissed. Hence, this CMP has been filed. 4. Mr. Mishra, learned counsel for the Petitioner further submits that admittedly, the suit land (schedule ‘A’) was the self acquired property of Sri Ganeswar Dash, the father of the Petitioner. Defendant No.1 is the estranged wife of Defendant No.3, the brother of the Plaintiff. Taking advantage of the old age of Ganeswar dash and Sitamani Debi, the sale deed was managed to be executed in her favour in respect of schedule ‘A’ property. Fraudulently describing her as the daughter of Ganeswar Dash, she became the joint account holder in schedule ‘B’ property which is maintained in Bank of Baroda, Nayapali Branch, Bhubaneswar. After the death of Ganeswar Dash, the Defendant No.1-Opposite Party No.1 is trying to alienate the schedule ‘A’ property and release the money kept in the joint account of Late Ganeswar Dash and the Defendant No.1. Since the fraud came to the knowledge of the Petitioner, she filed the suit for the aforesaid relief and also filed an application for injunction, as aforesaid. Learned trial Court as well as appellate Court failed to appreciate that the Opposite party No.1 is fraudulently trying to alienate schedule ‘A’ property and to release the money in respect of schedule ‘B’ account. The Petitioner, being the daughter of late Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 19:27:53 Ganeswar Dash, has succeeded to the property after death of his father. Thus, she has a share in the suit property. If the Opposite Party No.1 succeeds in her attempt to alienate Schedule ‘A’ property and to release Schedule ‘B’ property, the Petitioner will not get anything even if she succeeds in the suit. This aspect was not taken into consideration by both the Courts. Hence, this CMP has been filed assailing the orders under Annexure-3 and 4. 5. Mr. Niamati, learned counsel for the Bank of Baroda- Opposite Party No.2 submits that joint account in respect of schedule ‘B’ property was in the category of “either or survivor”. Thus, the Opposite Party No.1 became the sole operator in respect of the joint account in schedule ‘B’ property after the death of Ganeswar Dash. 6. Taking note of the submission made by learned counsel for the parties and on perusal of the record, this Court finds that a registered sale deed has been executed by the recorded tenant, namely, Ganeswar dash and his wife Sitamani Debi in favour of the Opposite Party No.1. Of course, a prayer is made in the suit to cancel the sale deed in question. Further, the joint account in schedule ‘B’ property is in the category of “either or survivor”. Thus, as submitted by Mr. Niamati, learned counsel for Opposite Party No.2, after the death of Ganeswar Dash, Opposite Party No.1 became the sole operator in respect of the said account. The veracity of the allegations made by the Petitioner is the subject matter of the suit. Thus, at this stage, this Court is not in a position to record any opinion on the veracity of such allegations. 7. It prima facie appears that Opposite Party No.1 has acquired title in respect of the suit schedule ‘A’ property pursuant Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 19:27:53 to the sale deed executed by the true owner and became the sole operator in respect of the schedule ‘B’ account. Thus, learned Courts have committed no error in refusing the prayer for injunction, as prayed for by the Petitioner. 8. Accordingly, this CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4