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: 20-Feb-2024 20:01:47 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1643 OF 2023 Mamata Panda Petitioner Mr. Mihir Kanta Rath, Advocate …. -versus- Nityananda Mishra and another …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 19.02.2024 1. 1. This matter is taken up through hybrid mode. 2. Judgment dated 18th October, 2023 (Annexure-5) passed by learned District Judge, Balasore in F.A.O. No.14 of 2023 is under challenge in this CMP, whereby reversing the order dated 16th January, 2023 (Annexure-4) passed by learned Senior Civil Judge, Nilgiri in I.A. No.44 of 2022 (arising out of C.S. No.154 of 2022), learned appellate Court directed the parties to maintain status quo over the suit land with regard to possession, nature and character as well as alienation till disposal of the suit. 3. Mr. Rath, learned counsel for the Petitioner submits that the suit has been filed to declare the sale deed No.3949 dated 6th July, 2007 executed by the legal heirs of Subasini Panda, namely, Krushna, Harish, Girish, Harapriya, Krushnapriya, Bishnupriya, Bhanupriya and Jyotshnarani in favour of the Defendant No.1-Petitioner as illegal as well as for partition. It is his contention that the suit land originally belonged to Subasini Panda and her mother Annupurna Panda. After death of Annupurna, Subasini became the exclusive owner in possession Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 20:01:47 // 2 // of the suit property. Subasini Panda died intestate leaving behind her three sons and five daughters, who jointly succeeded to the suit property. When the matter stood thus, Krushna, Harish, Harapriya, Krushnapriya and Bishnupriya alienated ‘Kha’ Schedule property to the Defendant No.1-Petitioner by Registered Sale Deed No.3949 dated 6th July, 2007. Accordingly, RMS R.O.R was also prepared in the name of Defendant No.1 vide RMS Khata Nos.42 and 382. Earlier C.S. No.43 of 2007 was filed challenging the aforesaid sale deed dated 6th July, 2007 and the sale deed was declared valid. But, the Plaintiff-Opposite Party No.1 was not made a party to the said suit. Since rest of the legal heirs of Subasini Panda were made parties to the suit, who had executed the sale deed and the sale deed in question is held to be valid, no temporary order of injunction could have been passed against the Defendant No.1- Petitioner, more particularly, when the R.O.R. also stands in her name. In view of the order of injunction, the Defendant No.1- Petitioner is unable to deal with her property independently. She is also restrained from entering upon the suit property. Learned trial Court considering the same, refused to entertain the petition under Order XXXIX Rules 1 and 2 CPC and rejected the same. But, learned appellate Court holding that the Plaintiff, who being a legal heir of Subasini Panda, not made a party to the earlier suit, directed for maintenance of order of status quo. Hence, this CMP has been filed. 4. Heard Mr. Rath, learned counsel for the Petitioner and perused the materials on record. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 20:01:47 // 3 // 5. Taking into consideration the facts as narrated by Mr. Rath, learned counsel for the Petitioner, this Court finds that in C.S. No.43 of 2007, Registered Sale Deed No.3949 dated 6th July, 2007 executed in favour of the Petitioner was under challenge. In the judgment dated 15th December, 2011 passed in C.S. No.43 of 2007, learned trial Court held the Registered Sale Deed to be genuine. Thus, the Defendant No.1-Petitioner claims that the sale deed in question could not have been challenged in the subsequent suit, i.e., in C.S. No.154 of 2022. It, however, appears that Subasini Panda, the common ancestor had three sons and five daughters including the Plaintiff-Opposite Party No.1. It is also not disputed that in C.S. No.43 of 2007, the Plaintiff-Opposite Party No.1 is not made a party. Thus, the judgment and decree passed in C.S. No.43 of 2007 is not binding on the Plaintiff-Opposite Party No.1. 6. Mr. Rath, learned counsel for the Petitioner, however, submits that the Plaintiff is a stranger to the family and has no locus standi to maintain the present suit. The same is a matter of adjudication in the suit itself. It further appears that an application under Order XXXIX Rules 1 and 2 CPC is filed in the present suit to restrain the Defendant No.1 (recorded tenant) from entering upon the suit land and also to restrain him from changing the nature and character as well as from alienating the suit property. Learned appellate Court considering the fact that the land in question stands recorded in the name of the Defendant No.1-Petitioner, was not inclined to grant the prayer restraining him from entering upon the suit land. But, it is held by learned appellate Court that if the land is alienated in the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 20:01:47 // 4 // meantime, there will be multiplicity of litigation and the Plaintiff will be highly prejudiced and will suffer irreparable loss. 7. In view of the above, striking a balance between respective claims and rights of the parties, learned appellate Court directed the parties to maintain status quo with regard to possession, nature and character as well as alienation of the suit property. Learned trial Court appears to have not taken into consideration those aspects while adjudicating the matter. Basing upon the judgment passed in C.S. No.43 of 2007, learned trial Court rejected the petition under Order XXXIX Rules 1 and 2 CPC filed by the Opposite Party No.1 holding that the same relief cannot be claimed repeatedly in different suits. But, it failed to appreciate that the same is not binding on the Plaintiff- Opposite Party No.1. Thus, learned appellate Court has not committed any error in reversing the order passed by learned trial Court. In view of the discussions made above, I am not inclined to interfere with the impugned order under Annexure-5. 8. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4