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2003 DIGILAW 150 (ORI)

Bhima Nayak v. Chittaranjan Sahoo

2003-02-20

P.K.TRIPATHY

body2003
ORDER 20.2.2003 — Counsel for the opposite parties are not present. Heard learned counsel for the petitioner and this civil revision stands disposed of at the stage of admission. 2. Plaintiff in Title Suit No. 12 of 2002 is the petition¬er in this civil revision. He challenged to the order dated 27.3.2002 passed in Misc. Case No. 8 of 2002 of the Court of Civil Judge (Junior Division), Khurda, and the confirming order vide judgment dated 30.7.2002 in Misc. Appeal No. 2 of 2002 of the learned Addl. District Judge, Khurda. The aforesaid Misc. case was under Order 39, Rules 1 and 2, C.P.C. filed by the plaintiff in Title Suit No. 12 of 2002 seeking for interim in¬junction against the defendants’opposite parties with respect to Plot No. 2290 under Khata No. 341 of Mouza Jajarsingh measuring an area of Ac. 0.120 decimals, which is admittedly a homestead land. 3. The simple case, which is projected by the plaintiff is that the above noted disputed property is a part and parcel of the homestead property belonging to the joint family and the defendants being outsiders and strangers to the family, have no right, or eligibility to possess the same and therefore, when the defendants made attempt to make construction on that property, he has filed the above suit for permanent injunction and prays for interim injunction during the pendency of the suit. In that respect plaintiff further stated that Jay Naik the vender under whom the defendants claim title is an agnet of the plaintiff. That Jay Naik instituted Title Suit No. 63 of 1991 in the Court of Civil Judge (J.D.), Khurda, seeking for exclusive title and possession over the suit property and not only that suit was dismissed but also Title Appeal No. 3 of 1993 carried against that judgment and decree by said Jay Nayak was dismissed by con¬firming to the decree passed in Title Suit No. 63 of 1991. The plaintiff therefore contended that the defendants have lost any semblance of right, title and interest over the suit property so as to undertake any construction, which if not prevented shall interfere with the privacy of the joint family in their dwelling premises and that the same shall be in violation of the provi¬sions in Section 23 of Hindu Succession Act, 1956 and Section 4 of the Partition Act, 1893 besides the public policy in that respect. 4. Defendants entered appearance and resisted to the prayer for interim injunction and disclosed their plea that the above named Jai Nayak on 6.2.1954 transferred the suit property in favour of one Kamala Satya, who continued to possess the same peacefully with right, title and interest. After purchasing that property, when Kamala Satya came to know that Jai Nayak was not the exclusive owner and was jointly recorded with others. he got another sale deed executed on 12.4.1954 by Jai Nayak and his agnets and thereafter peacefully possessed the property as of right and in 1959 raised foundations of five rooms over the disputed property. On 14.8.1959 said Kamala Satya transferred the suit land in favour of defendant No. 1 for consideration and since that date defendant No. 1 is in possession of the property with right, title and interest. He has further stated that he applied for mutation and that was contested by the present plain¬tiff along with some of his agnets and after due inquiry in Muta¬tion Case No. 179 of 1986 ‘Patta’ was prepared in favour of defendant No. 1 as Plot No. 2290/369 and Khata No. 648/642. When the defendant through the power of attorney wanted to carry on some repair works on the existing structure, a dispute arose and Title Suit No. 39 of 1960 was filed in the Court of Munsif, Khurda as against the present Defendant No. 1 and others. Father of the plaintiff was also party to that suit. That suit was disposed of upholding validity of the alienation of the property in favour of defendant No. 1, and Title Appeal No.175 of 1961 preferred as against that judgment was dismissed by the Subordi¬nate Judge, Bhubaneswar. Defendant No. 1 has also stated that a proceeding under Section 145, Cr.P.C. was initiated, in which, as per the decision of this Court in a criminal revision, possession of defendant No.1 has been upheld. Defendants alleged that all such material facts were not brought to the notice of the Court in Title Suit No. 63 of 1991 and Title Appeal No. 3 of 1993 and that decree was obtained behind the back of defendant No. 1 as he was not added as a party-defendant in that suit. Defendants further alleged that plaintiff has sought for the relief of temporary and permanent injunction by suppressing all such mate¬rial facts. 5. Defendants further alleged that plaintiff has sought for the relief of temporary and permanent injunction by suppressing all such mate¬rial facts. 5. When the dispute stands at that, it is for the plain¬tiff to now seek appropriate legal advice whether the suit, as framed by him, is maintainable. That aspect should be taken care of and duly considered by the Court below if such issue shall be raised. 6. The Courts below on appreciation of the aforesaid contentions of both the parties found bonafideness in the conten¬tion of the defendants and also found the conduct of the plain¬tiff in suppressing material facts objectionable and against the equity and accordingly rejected the prayer for injunction. 7. Learned counsel for the petitioner argues that while considering in the above manner, the Courts below did not take note of the legal position in the Hindu Succession Act and Parti¬tion Act. He argues that the suit property is admittedly home¬stead land and located in the same residential premises belonging to the family of the plaintiff and his agnets, and in view of that when the right of pre-emption is available in favour of the plaintiff, he is entitle to the equitable relief of temporary injunction for preventing the defendants to proceed with any construction. He further argues that balance of convenience stands in favour of the plaintiff inasmuch as the inconvenience which the plaintiff shall suffer cannot be remedied unless there is a temporary injunction against the defendants from undertaking any construction. Accordingly, he prays to set aside the impugned orders and to grant temporary injunction in favour of the plain¬tiff. 8. Notwithstanding the claim of right, title, interest and possession over the suit land by the defendant No. 1 and orders of Civil Court, Revenue Court and this Court being in favour of the defendant No. 1 the aforesaid prayer of the plaintiff could have been taken into consideration for exercise of right of pre-emption and accordingly it could have been considered to be a proper case for grant of interim injunction directing the defend¬ant No. 1 not to proceed with any construction if in the plaint, plaintiff would have described about all the previous litigations and decisions thereof with respect to the suit property and could have made out a pleading in favour of right of pre-emption. When the pleading advanced by the plaintiff is completely lacking in that aspect therefore, the claim of right of pre-emption by the plaintiff has submerged into the lacuna in his pleading. 9. Apart from that the Courts below have rightly taken exception to the conduct of the plaintiff in suppressing material facts inasmuch as plaintiff has stated nothing in his plaint regarding execution of subsequent sale deed by the co-owners (in the year 1954), disposal of the Mutation Proceeding which was contested by the plaintiff, declaring possession in favour of the defendant No. 1 in the proceeding under Section 145, Cr.P.C. and above all the decision of the Original Court, first appellate Court and the High Court in the second appeal arising out of the suit of the year 1960. All such decisions have gone in favour of defendant No. 1 and all such facts have been suppressed by the plaintiff. It is well known principle that, he who seeks equity must do equity. The aforesaid conduct of the plaintiff undoubted¬ly shows that he has not come to the Court with clean hands. Therefore, he is not entitled to the relief of injunction. 10. Considering the impugned orders and the aforesaid argument of the petitioner in the above manner, and keeping in view the scope of interference in a revision under Section 115 of the Civil Procedure Code, this Court finds that the impugned orders of the Courts below is not liable to be interfered with. Accordingly, the Civil Revision in dismissed. Revision dismissed.