The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.339 OF 2023 Lingaraj Mishra Petitioner Mr. Ajit Kumar Tripathy, Advocate …. -versus- Annapurna Devi @ Fakiramani Devi and another …. Opp. Parties Mr. Bhawani Sankar Panigrahi, Advocate CORAM:‘ JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 01.09.2023 CMP NO.339 OF 2023 & CMP NO.217 OF 2023 5. 1. This matter is taken up through hybrid mode. 2. Both the CMPs have been filed assailing order dated 25th January, 2023 passed by learned District Judge, Puri in F.A.O. No.34 of 2022 modifying the order dated 9th May, 2022 passed by learned Senior Civil Judge, Puri in IA No.12 of 2022 (arising out of C.S. No.49 of 2022). 3. For the sake of convenience of discussion, parties are described as per their status before learned trial Court. Civil Suit No.49 of 2022 has been filed by the Petitioners for partition of ‘A’ and ‘B’ Schedule property to the plaint and for allotment of legitimate share in their favour. Along with the plaint, the Plaintiffs filed I.A. No.12 of 2022 under Order XXXIX Rules 1 and 2 CPC with the following prayer: “Under these circumstances the Petitioners pray that the Court be pleased to exercise its discretion, allow this petition, pass an order of Ad-interim injunction restraining the opposite party from causing any waste Page 1 of 6 // 2 // or damage to the suit properties and not to alienate the suit property during pendency of the suit and for which act of kindness the petitioner shall ever pray.” 4. Learned trial Court disposed of the application vide his order dated 9th may, 2022 with the following direction: injuncted temporarily “The I.A. be and the same is allowed on contest against the O.P. The O.P. is hereby from causing any waste or damage to the suit property and not to alienate the suit property during the pendency of the suit except the suit property relating to Khata No.176 of Mouza Girala. There is no order as to cost.” 5. Assailing the same, the Defendant No.1 preferred FAO No.341 of 2022. Learned Appellate Court vide his order dated 25th January, 2021 disposed of the appeal with the following order: “The appeal be and the same is allowed in part on contest against the respondents, without cost. The impugned order dated 09.05.2022 passed by the learned Civil Judge (Senior Division), Puri in I.A. No.12 of 2022 arising out of C.S. No.49 of 2022 is hereby modified to the extent that the O.P. in the I.A. No.12 of 2022 is only restrained to alienate and to change the nature and character of the properties the suit property except described in Lot No.III of Schedule-A and the Plot No.124 measuring AC.1.320 decs under Lot No.I of Schedule-B of the plaint till the C.S. No.49 of 2022. disposal of Accordingly, the FAO is disposed of.” 6. It is submitted by Mr. Tripathy, learned counsel for the Defendant No.1 that admittedly Schedule-A property is acquired by late Bhagaban Mishra and Schedule-B land was the self- acquired property of Parvati Devi- wife of Bhagaban Mishra. It Page 2 of 6 // 3 // is the case of the Defendant No.1 that there was an amicable partition between Bhagaban Mishra and Defendant No.1 and half of Schedule-A property fell to his share. A Will was also executed in favour of Defendant No.1 by said Bhagaban Mishra, his father. At present Test Case No.6 of 2018 for probate of the Will executed by Bhagaban Mishra is pending in the Court of learned District Judge, Puri. It is also submitted that late Parbati Devi during her life time had also executed a Will in favour of Defendant No.1 in respect of the Schedule-B property. After her death, the Defendant No.1 had filed Test Case No.5 of 2018 for probate of the said Will which is pending in the Court of learned District Judge, Puri. At this juncture, the Plaintiffs filed suit for partition. 7. It is his submission that in the meantime, the Defendant No.1 had executed an agreement and a Power of Attorney in favour of a Developer for construction of a multi-stored building over Lot No.1 of Schedule-B and the said multi-stored building has been constructed substantially up to third floor. Further, Lot No.III of Schedule-A land, i.e., Khata No.176 of Mouza Girala is the self-acquired property of Defendant No.1. Thus, learned trial Court, while considering the matter, passed the order as quoted above keeping apart, the property under Khata No.176 of Mouza Girala, i.e., Lot No.III of Schedule-A. 8. It is further submitted that since the building has been constructed substantially, learned appellate Court holding that the Defendant No.1 should be allowed to be continued with the construction excluded Plot No.124 measuring Ac.1.320 decimals Page 3 of 6 // 4 // under Lot No.1 of Schedule-B of the plaint. But both the Courts directed the Defendant No.1 not to alienate the suit property. It is his submission that unless alienation is permitted, both the Developer as well as the Defendant No.1 will suffer irreparable loss as it has invested huge amount. 9. Mr. Panigrahy, learned counsel for the Plaintiffs submits that both the Courts holding that there is no partition by means and bound, directed the Defendant No.1 from causing any waste and damage to the suit property and restraining from alienating the same except the aforesaid properties. Unless the Defendant No.1 is restrained from making any further construction over the suit property, there will be difficulty in working out the preliminary decree of partition to be passed in the suit. He further submitted that by playing fraud, the Defendant No.1 describing himself as the only son of late Bhagaban Mishra, and Parvati Devi mutated the entire property in his name ignoring the right share of the Plaintiffs. Thus, Defendant No.1 is not entitled to any relief. Since the Schedule land including the properties excluded by the Courts are the subject matter of partition, status-quo in respect of the same should be maintained till disposal of the suit. He, therefore, prays for modification of the impugned order to that extent restraining the Defendant No.1 from making any further construction over the suit property including the properties kept apart by the Courts. 10. Considering the submission made by learned counsel for the parties and on perusal of the record, it appears that admittedly the Schedule-A property was acquired by late Page 4 of 6 // 5 // Bhagaban Mishra and land under Schedule–B of the plaint was the self-acquired property of late Parvati Devi. It is alleged by the Defendant No.1 that in respect of half of Schedule-A a Will was executed by late. Bhagaban Mishra and in respect of Schedule-B property, a Will was executed by his mother namely, Parvati Devi in his favour and probate cases are pending before learned District Judge, Puri. Since, the Probate cases as well as the instant suit fir partition are sub-judice, this Court is of the considered opinion that no third party interest should be created in respect of those property during pendency of the suit. Thus, submission of Mr. Tripathy, learned counsel cannot be accepted. 11. It further appears that construction over Plot No.124 measuring area of Ac.1.320 decimals under Lot No.1 of Schedule-B of the plaint, has been made substantially up to third floor. Thus, restraining the Defendant No.1 from proceeding with further construction will be beneficial to none. It is more so because of the fact that no prayer to restrain the Defendant No.1 from making further construction has been made in the IA. Thus, the submission of Mr. Panigrahy, learned counsel for the Plaintiff cannot be accepted. 12. Since there are material which prima facie suggest that Lot No.III of Schedule-A, i.e., Khata No.176 of Mouza Girala was acquired by Defendant No.1 and it was not the property either of late Bhagaban Mishra or Parvati Devi, learned Courts have not committed any error in excluding that property from restraint order. It also appears that learned appellate Court has dealt with the matter in detailed particulars and has arrived at the Page 5 of 6 // 6 // finding impugned in both the CMPs. Thus, I find no infirmity in the same. As such, both the CMPs being devoid of any merit stand dismissed. Urgent certified copy of this order be granted on proper application. Rojalin Judge (K.R. Mohapatra) Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Sep-2023 19:09:12 Page 6 of 6