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: 08-Aug-2024 15:15:07 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 801 OF 2024 (An application under Article 227 of the Constitution of India) ***** Nihar Ranjan Pattnaik and another …… Petitioners -Versus- Manoranjan Pattnaik and others .…… Opp. Parties Advocates appeared: For Petitioners : Mr. Bikram Senapati, Advocate For Opp. Parties : Mr. Biswambar Mohanty, Advocate (For Opp. Party Nos.2 to 7) CORAM : MR. JUSTICE K.R. MOHAPATRA ------------------------------------------------ Heard and disposed of on 07.08.2024 ---------------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Judgment dated 11th July, 2024 (Annexure-8) passed in F.A.O. No.172 of 2023 is under challenge in this CMP, whereby learned 2nd Additional District Judge, Bhubaneswar allowed the appeal by setting aside the order dated 3rd October, 2023 (Annexure-6) passed by learned Civil Judge (Senior Division),
Facts
Bhubaneswar in I.A. No.1 of 2023 (arising out of C.S. No.169 of 2023) filed under Order XXXIX Rules 1 and 2 CPC.
Legal Reasoning
appellate Court misconstruing prima facie case to be prima facie title of the purchasers over the suit property, allowed the appeal and vacated the order of status quo. Hence, this CMP has been filed. 7. Mr. Mohanty, learned counsel for Opposite Party Nos.2 to 7 (purchasers) submits that the Plaintiffs at paragraph-3 of the plaint have categorically stated that the original recorded tenant namely, Birabara Pattnaik died on 21st November, 1996 leaving behind his only son, Harekrushna Pattnaik as his legal heir and successor in interest of his estate. In view of such admission of the Plaintiffs in the plaint, Harekrushna became the absolute owner in respect of the suit property after death of original tenant-Birabara. On the death of Birabara, Harekrushna got the land recorded in his name. During his lifetime, he executed a POA in favour of his son, namely, Defendant No.1. By virtue of the said POA, sale deeds have been executed in favour of the Opposite Party Nos.2 to 7, who are bona fide purchasers. RORs have already been prepared in their name. On the date of registration of the sale deeds, possession of the land, they have purchased, were delivered and they have constructed boundary wall around their respective properties. Thus, prima facie case in favour of the Opposite Party Nos. 2 to 7 is made out in their favour and balance of convenience also leans in their favour instead of Plaintiffs. They will suffer irreparable loss, if they are restrained to enjoy their property independently in spite of CMP No. 801 OF 2024 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 5 // recording of the land in their names. Learned appellate Court considering the same has passed the impugned order under Annexure-8, which warrants no interference. 8. Upon hearing learned counsel for the parties and on perusal of the record, it appears that the Plaintiffs at Paragraph-3 of the plaint have categorically stated that the original recorded tenant, namely, Birabara Pattnaik died on 21st November, 1996 leaving behind his only son namely, Harekrushna Pattnaik as his legal heir and successor in interest of his estate. Thus, a plea at this stage that Birabara died leaving behind Harekrushna and one daughter cannot be accepted. Further, it appears that after death of Birabara, Harekrushna got the land mutated in his name and ROR was also prepared accordingly. The said ROR has not yet been challenged. During his life time, he executed the impugned POA in favour of Defendant No.1, his elder son. Admittedly, Harekrushna died leaving behind Defendant No.1 and the Plaintiffs, who are siblings. From the record, it prima facie appears that the Harekrushna was the absolute owner in respect of the suit property when he executed the POA in question. Thus, the plea taken by Mr. Senapati, learned counsel for the Petitioners that till a partition is affected by metes and bounds, all the co-sharers are deemed to be possession over every inch of the suit land, is not sustainable and the principle has no application to the case at hand. In support of his case, Mr. Senapati, learned counsel for the Petitioners also relied upon the case of Kamala Dash and others –v- Rama Pratap Kheria, reported in 2014 (II) ILR-CUT 161, in which it is held as under: CMP No. 801 OF 2024 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 6 // “7. Learned court below has observed that the plaintiffs- petitioners have failed to establish that they are in possession of the suit land or any part thereof. But it is well settled that a co-sharer has right on every inch of land belonging to the joint family. It is also well settled that one of the co-sharers cannot alienate any specific portion of the joint family lands without the consent of the other. Therefore, even in the absence of any proof of averments that the Appellants are in possession of the suit lands, the prayer for interim injunction cannot be disallowed.” 9. The case law relied upon by Mr. Senapati, learned counsel for the Petitioners is of no assistance to their case as in that case the fact involved was completely different. In the said case, the Plaintiffs have taken a specific stand that one, Udayanath Dash, the common ancestor died in the year 1993-94 leaving behind his only son, Biswanath Dash who died in 2004 and only daughter Mukta Dash, who died in the year 2006. Biswanath Dash died leaving behind his widow, two sons and two daughters, who are still alive. But, in the instant case, the Plaintiffs have taken a plea that Birabara Pattnaik died on 21st November, 1996 leaving behind his only son, Harekrushna Pattnaik. If that plea is accepted, then on the death of Birabara, succession opened and property devolved upon his son, Harekrushna Pattnaik only. 10. At Paragraph-5 of the plaint, it is stated that the Plaintiffs and Defendant No.1 are sons and daughter of late Harekrushna Pattnaik and grand children of late Birabara Pattnaik. But the fact remains at Paragraph-3 they have categorically stated that Birabara Pattnaik had died leaving behind his only son, Harekrushna Pattnaik as his legal heir and successor in interest CMP No. 801 OF 2024 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 7 // of his estate. This Court does not want to delve into these aspects, as it is a matter of adjudication in the suit. But, the fact remains that the RORs have already been prepared in the name of Opposite Party Nos.2 to 7 (purchasers). Thus, in absence of any material to the contrary they are deemed to be in possession over the suit property. It is the admitted case of both the parties that the no construction has yet been made over the suit property. But, in view of the presumption that flows from the RORs prepared in the name of Opposite Party Nos.2 to 7, they should not be restrained from enjoying the property independently subject to the decision of the suit. 11. Thus, in view of the above, this Court feels that learned appellate Court has committed no error in reversing the order passed by learned Civil Judge (Senior Division), Bhubaneswar, whereby it was directed that parties should maintain status quo over the suit property. 12. As such, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 7th August, 2024/Madhusmita CMP No. 801 OF 2024 Page 7 of 7
Arguments
3. Mr. Senapati, learned counsel for the Petitioners submits that the suit has been filed for declaration that the Registered CMP No. 801 OF 2024 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 2 // Power of Attorney (POA) No.8692 dated 30th August, 2004 executed by Harekrushna Pattnaik in favour of Defendant No.1 is void, inoperative and not binding on the Plaintiffs. It is also prayed that the sale deeds, which were executed by Defendant No.1 by virtue of the said POA are also null and void and not binding on the Plaintiffs. Further the Petitioners prayed for cancellation of the Record of Right (ROR) in respect of the suit land and for permanent injunction. It is submitted that admittedly, the suit land stood recorded in the name of one, Birabara Pattnaik, the common ancestor, who died leaving behind Harekrushna Pattnaik, his son, on 21st November, 1996. During his lifetime said Harekrushna Pattnaik executed a Registered Power of Attorney No.8692 dated 30th August, 2004 in favour of his elder son, namely, Defendant No.1 without knowledge of the Plaintiffs. By virtue of the said POA, the Defendant No.1 created several Registered Sale Deeds in favour of rest of the Defendants, namely, Opposite Party Nos. 2 to 7. Since they tried to dispossess the Plaintiffs, the suit has been filed. 4. It is submitted that Birabara Pattnaik died on 21st November, 1996 leaving behind Harekrushna along with one daughter, but inadvertently, the name of the daughter could not be stated in the plaint. After death of Birabara, the suit land became ancestral property in the hand of Harekrushna Pattnaik. Thus, he could not have executed the POA in favour of Defendant No.1 without consent of the present Plaintiffs, who are none other than his children and coparceners of the suit CMP No. 801 OF 2024 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 3 // property. Said Harekrushna Pattnaik also managed to mutate the land in his name. Thus, taking advantage of the same, he executed the POA, which has resulted in filing of the suit. It is his submission that by virtue of the POA, Defendant No.1 could not have sold the property beyond the share of Harekrushna Pattnaik in the suit property. 5. It is submitted that although different sale deeds have been created in favour of the Defendants, but the possession of the suit land was never delivered to them. The Plaintiffs along with Defendant No.1 are still in possession over the suit property. Since the Defendants created disturbance in possession of the Plaintiffs, an application in I.A. No.1 of 2023 was filed under Order XXXIX Rules 1 and 2 CPC. Learned Civil Judge (Senior Division), Bhubaneswar finding prima facie case, balance of convenience in favour of the Plaintiffs and holding that they will suffer irreparable loss, if the lis is not protected during pendency of the suit, directed the parties to maintain status quo over the suit land. Learned appellate Court without considering the same passed the impugned order solely basing upon the recording of the land in favour of Harekrushna Pattnaik so also recording of the land in favour of the purchasers pursuant to the sale deeds executed by Defendant No.1 by virtue of POA. 6. It is further submitted that the co-sharers in a joint family property deem to be in possession over every inch of the land unless and until it is partitioned by metes and bounds. Admittedly, there is no partition by metes and bounds between the Plaintiffs and Defendant No.1. Thus, the purchasers could CMP No. 801 OF 2024 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 15:15:07 // 4 // not have acquired any title or possession over the suit property by virtue of the sale deeds executed in their favour. Learned