The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 13:14:24 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 439 OF 2024 Pramod Kumar Mania @ Pramod Mania …. Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Sushrita Sahoo, Advocate Maheswar Ganthia and others …. Opp. Parties -versus-
Legal Reasoning
Mr. Himanshu Bhusan Dash, Advocate (For Opp. Party No.1) Mr. Ramesh Agrwal, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 13.09.2024 5. 1. This matter is taken up through hybrid mode. 2. Judgment dated 27th January, 2024 (Annexure-5) passed in F.A.O. No.32 of 2023 is under challenge in this CMP, whereby learned Additional District Judge, Nimapara dismissing the appeal confirmed the order dated 19th June, 2023 (Annexure- 4) passed by learned Civil Judge, Konark in I.A. No.10 of 2023 (arising out of C.S. No.10 of 2023), directing the parties to maintain status quo over the suit property. 3. The Opposite Party No.1 being the Plaintiff filed the suit for permanent injunction to restrain the Defendants from disturbing his peaceful possession over the suit property and further prayed for restraining the Defendants from making any construction of tower over the suit property. Along with the Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 13:14:24 plaint, the Plaintiff filed I.A. No.10 of 2023 under Order XXXIX Rules 1 and 2 CPC with a prayer to restrain the Defendants from entering upon the suit land and not to change the nature and character of the suit property and causing inconvenience in any manner of use of the land by the Plaintiff. Learned trial Court directed the parties to maintain status quo over the suit property. Being aggrieved, the Defendant No.3-Petitioner preferred F.A.O. No.32 of 2023, which was dismissed vide judgment dated 27th January, 2024 under Annexure-5. Hence, the Defendant No.3 being aggrieved has filed this CMP. 4. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that there was an amicable partition between the Defendant Nos.1 and 3 including other co-sharers and a registered deed of partition was executed on 5th May, 1989. Pursuant to that, the Plaintiff-Opposite Party No.1 alienated different parcels of land. When the matter stood thus, Defendant No.3-Petitioner executed an agreement with the Opposite Party Nos.2 and 3 (Bharati Airtel Ltd.) to construct a mobile tower on Plot No.2082, which fell to the share of Defendant No.3- Petitioner as per the registered deed of partition. Although the registered partition deed as well as the sale deeds executed by the Plaintiff-Opposite Party No.1 were produced before learned trial Court, but ignoring the same, it emphasized on the not final ROR in respect of the suit properties which stands jointly. Accordingly it was held inter alia that in view of the joint recording, veracity of the registered deed of partition can be gone into at the time of trial of the suit. As such, it directed the parties to maintain status quo over the suit property vide order Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 13:14:24 under Annexure-4. Learned appellate Court while adjudicating the appeal although referred to the registered deed of partition, but did not record any finding with regard to legal presumption arising out of the said deed of partition. It only held that since the not final ROR stands jointly, existence of partition, if any, can be adjudicated in the suit and maintained the order of status quo passed by learned trial Court. 5. It is his submission that in view of the registered partition deed and subsequent conduct of the Plaintiff-Opposite Party No.1 in alienating the property pursuant to such partition, presumption of partition is in favour of the Petitioner-Defendant No.3. Although it is pleaded by the Plaintiff that the land stands jointly and there is no partition by metes and bounds, but he has not explained the Registered Sale Deeds executed by him pursuant to such deed of partition. These material aspects were not taken into consideration by either of the Courts while adjudicating the matter. Hence, he prays for setting aside the impugned orders under Annexures-4 and 5 and to vacate the order of status quo. 6. Mr. Dash, learned counsel for the Plaintiff-Opposite Party No.1 vehemently objects to the above and submits that not final ROR stands jointly, from which it appears that the property is still stands jointly. Veracity of the registered partition deed which is being relied upon the Defendant No.3 can be gone into at the time of adjudication of the suit, as rightly held by learned Courts. He further submits that there is no material on record to show as to whether the Plaintiff was a signatory to such registered partition or not. He, therefore, submits that learned Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 13:14:24 Courts have committed no error in directing the parties to maintain status quo to protect the lis during pendency of the suit. Hence, he prays for dismissal of the CMP. 7. Heard learned counsel for the parties and perused the materials on record. 8. It is not disputed that there exists a registered partition deed between the parties and the suit land, i.e. Plot No. 2082 fell to the share of Defendant No.3. The Plaintiff has never assailed the genuineness of such partition deed. In addition to the above, there exist different sale deeds executed by the Plaintiff- Opposite Party No.1 pursuant to the deed of partition. No explanation was also offered as to how sale deeds could be executed by the Plaintiff-Opposite Party No.1 independently without taking consent of other co-sharers, when the Plaintiff himself alleges that the property still stands jointly. Registered deed of partition unless and until set aside gives rise to a legal presumption that there is a partition by metes and bounds, which can only be disproved by adducing evidence. Further the settlement ROR neither creates nor extinguishes any right. In the instant case, no final ROR in respect of the suit land was produced either before learned trial Court or before learned appellate Court. Not final ROR should not have been relied upon by learned Courts to arrive at a prima facie opinion that the property still stands jointly. 9. In view of the discussions made above, I am of the considered opinion that the impugned orders under Annexures-4 and 5 suffer from misinterpretation of materials facts and are accordingly set aside. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 13:14:24 10. Since the registered partition deed gives rise to a legal presumption that there is a partition by metes and bounds and the not final ROR neither creates nor extinguishes the right of any party, the Petitioner-Defendant No.3 should not have been restrained by an order of status quo to deal with his property fell to his share independently. 11. In that view of the matter, the CMP is allowed vacating the order of status quo passed by learned trial Court and confirmed by learned appellate Court. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5