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: 21-Feb-2024 14:44:40 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.670 OF 2020 Subodha Kumar Mohanty …. Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. J. Pradhan, Advocate Petitioner Jagabandhu Sahu CORAM: -versus- Opp. Party …. Mr. Dwarika Prasad Mohanty, Advocate JUSTICE K.R. MOHAPATRA ORDER 20.02.2024 This matter is taken up through hybrid mode. Judgment dated 23rd November, 2020 (Annexure-4) passed Order No. 02. 1. 2. in FAO No.39 of 2020 is under challenge in this CMP, whereby
Legal Reasoning
dismissing an appeal, learned District Judge, Balasore confirmed the order dated 23rd September, 2019 passed by learned 1st Additional Senior Civil Judge, Balasore in IA No.229 of 2020 (arising out of CS No.707 of 2000) allowing an application under Order XXXIX Rules 1 and 2 CPC filed by the Plaintiff-Opposite Party and thereby restraining the present Petitioner from entering upon the suit property. 3.
Legal Reasoning
Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that CS No.707 of 2000 has been filed by the Opposite Party for partition and for a declaration that the compromise decree passed in CS No.216 of 1997 is bad in law and not binding on him. CS No.216 of 1997 was filed by Balaram Sahu (Defendant No.1 in the present suit) against Gedimani Sahu, Balaram Sahu and Srimati Sahu. The said suit was decreed on compromise allotting Ac.1.00 dec. of the suit property in favour of Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Feb-2024 14:44:40 // 2 // Srimati and Ac.1.10 dec. in favour of Balaram. The rest of the property, i.e., Ac.1.40 dec. remained with Gedimani Sahu. Accordingly, Balaram and Srimati got the land mutated in their name. Said Balaram Sahu and Srimati Sahu sold their entire property by virtue of two RSD Nos. 2574 and 2583 dated 13th March, 2020 respectively, in favour of the Petitioner. After purchase, the Petitioner mutated the land in his name and ROR has already been prepared. When the matter stood thus, the Opposite Party filed CS No.707 of 2000 seeking for aforesaid relief. He also filed IA No.229 of 2020 under Order XXXIX Rules 1 and 2 CPC with a prayer to restrain the present Petitioner from entering upon the suit property describing him to be a stranger to the joint family property and has no right to enjoy the property with the co-sharers. The said petition was allowed vide order dated 23rd September, 2020 (Annexure-3) restraining the Petitioner from entering upon the suit land. Assailing the same, the Petitioner preferred FAO No.39 of 2020, which was dismissed vide order under Annexure-4. Hence, this CMP has been filed. 4. It is further submitted that CS No.707 of 2000 was initially decreed in favour of the Opposite Parties. Assailing the same, the Petitioner preferred RFA No172/155 of 2014/08. During pendency of the said appeal, an application under Section XXXIX Rules 1 and 2 CPC was also filed by the Opposite Party against the vendors of the Petitioner, namely, Srimati Sahu and Balaram Sahu, which was dismissed with a finding that Srimati Sahu and Balaram Sahu are in exclusive possession over the suit property. The order passed by learned appellate Court under Order XXXIX Rules 1 and 2 CPC was also challenged before this Court in CMP No.261 of 2018 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Feb-2024 14:44:40 // 3 //
Decision
which was disposed of as infructuous, as the appeal was disposed of during pendency of the CMP. Initially the Petitioner was neither a party to the suit nor to the appeal. On remand, the Petitioner was impleaded as a party to the suit. It is his submission that the Petitioner is in possession over the suit land and the ROR has already been prepared in his name. Thus, it is presumed that the Petitioner is in possession over the suit property unless it is otherwise proved. He further submits that the compromise decree is still operative and thus alienation in favour of the Petitioner is valid unless and until it is set aside. But neither learned trial Court not learned appellate Court took these facts into consideration while considering the prayer made under Order XXXIX Rules 1 and 2 CPC. In view of the above, the impugned orders under Annexures- 3 and 4 are not sustainable in the eye of law and are liable to be set aside. 5. Mr. Mohanty, learned counsel for the Opposite Party, however, refutes the submission made by Mr. Mishra, learned Senior Advocate appearing for the Petitioner. It is his submission that the property in question is a joint family property and a suit for partition is pending. Since the Petitioner is a lis pendens purchaser of the property from some of the co-sharers, he is not entitled to possess the same along with members of the joint family including the Plaintiff-Opposite Party. As such, neither learned trial Court nor learned appellate Court has committed any error in allowing the prayer restraining the Petitioner from entering upon the suit property. He, therefore, prays for dismissal of the CMP. 6. Considering the submission made by learned counsel for the parties, this Court finds that CS No.216 of 1997 was decreed on Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Feb-2024 14:44:40 // 4 // compromise allotting Ac. 1.00 dec in favour of Srimati Sahu and Ac.1.10 dec. in favour of Balaram Sahu. The rest of the suit property remained in exclusive possession of Gedimani Sahu. Said Balaram Sahu and Srimati Sahu sold their share in favour of the Petitioner vide two RSDs dated 13th March, 2020. Before alienation, the property was also recorded in favour of said Balaram and Srimati Sahu by virtue of the compromise decree. Thus, on purchase, the Petitioner got the land mutated in his name and the ROR has already been prepared in the name of the Petitioner. The said compromise decree has been challenged in the present suit along with a prayer for partition. Initially, the suit was decreed in favour of the Opposite Party setting aside the compromise decree. However, in appeal, the said decree was set aside and the matter was remitted for fresh adjudication of the suit by learned trial Court. At that juncture, the Petitioner was made a party to the suit and an application (I.A. No. 229 of 2020) was filed by the Opposite Party under Order XXXIX Rules 1 and 2 CPC with a prayer to restrain the present Petitioner from entering upon the suit land. 7. It will not be out of context to mention here that a prayer for temporary injunction sought for by the Opposite Party during pendency of the appeal was rejected holding that the venders of the Petitioner were in exclusive possession over the suit property. These aspects were not taken into consideration by either learned trial Court or by learned appellate Court while adjudicating the matter, although both the Courts have referred to the decree passed in the appeal. Objection to IA No.229 of 2000 (arising out of present suit, i.e., CS No.707 of 2000) was also filed bringing these facts to the notice of the Court. Thus, it was incumbent on the part Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Feb-2024 14:44:40 // 5 // of learned Courts to discuss the same while adjudicating the matter. That having not been done, the impugned orders under Annexures- 3 and 4 are not sustainable. 8. Accordingly, the orders under Annexures-3 and 4 are set aside and the matter is remitted to learned trial Court for adjudication of IA No.229 of 2020 afresh giving opportunity of hearing to the parties concerned. 9. Since the suit is of the year 2000, learned trial Court should also make an endeavour for early disposal of the suit if the suit is still pending. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Rojalin Page 5 of 5