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2003 DIGILAW 126 (ORI)

Kulamani Behera v. Suka Jena

2003-02-14

P.K.TRIPATHY

body2003
ORDER 14.2.2003 — Heard. 2. Petitioner challenges the order of the refusal of injunction by learned Civil Judge (Jr. Division), Salipur in Misc. Case No. 168 of 1999 as per the impugned order dated 6.4.2001 and the confirming judgment in Misc. Appeal No. 28 of 2001 of the Addl. District Judge (Fast Track Court No. II), Cuttack as per the impugned judgment dated 19.7.2002. 3. Petitioner filed Title Suit No. 117 of the 1999 praying for permanent injunction by restraining the opposite party from alienating the suit schedule property with the allegation that the defendant/opp. party is a stranger to the family and she has no semblance of right, title, interest or possession over the suit property. In the plaint, inter alia, it was pleaded that the defendant is not his sister being not the daughter of his father namely Bisham Behera. He further alleged that Bisham Behera died in the year 1945 and therefore, even if the defendant would be recorded as a daughter, then also she did not inherit any right, title, interest or possession being a pre-Act daugh¬ter. With the aforesaid assertion he also moved for temporary injunction under Order 39, Rules 1 and 2, C.P.C. That application was registered as Misc Case No. 168 of 1999. Defendant/opposite party contested to the aforesaid claim of the plaintiff-petition¬er and stated that she is the daughter of Bisham Behera, who died in the year 1972 and that, in the year 1960 said Bisham Behera had purchased some lands by virtue of a sale deed. She has fur¬ther stated that in the consolidation record both plaintiff and the defendant are the jointly recorded tenants being the children of said Bisham Behera. Her further plea is that, plaintiff has already sold his half interest over the property left by their father and that, the suit for permanent injunction under the given facts and circumstances is not maintainable without seeking for consequential relief. 4. On analysis of the aforesaid factual aspect and the corresponding documents produced for perusal of the Courts below, it is recorded in the impugned orders that the plea advanced by the plaintiff/petitioner disentitling the status and the interest of the defendant is out and out false and in that respect the plaintiff suppressed material facts while seeking the relief of injunction. Apart from that, the Court below also recorded that when the plaintiff has sold the land and does not dispute to that allegation and when the defendant is the jointly recorded tenant, the relief claimed is not available to him because of concealment of the material facts. 5. Petitioner is unable to explain the aforesaid circum¬stance as to what made him to conceal the aforesaid facts. This Court also finds that no where the plaintiff has claimed for exclusive possession over the suit property in exclusion to the defendant in as much as his only prayer is to stop the defendant from alienating any part of the suit property. Regard being had to the aforesaid facts and circumstances noted by the Courts below and the aforesaid conduct of the plaintiff/petitioner, this Court finds that the Courts below have neither committed any jurisdictional error in considering the application and rejecting it nor in that respect they have committed any illegality so that this Court should interfere with the same by exercising the revisional jurisdiction. Under such circumstances, the Civil Revision Stands dismissed. Civ. Revision dismissed.