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2009 DIGILAW 650 (ORI)

Rajkumar Biswal v. Santilata Biswal

2009-08-21

SANJU PANDA

body2009
JUDGMENT S. PANDA, J. — Challenging the order dated 2.2.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Interim Application No.386 of 2008 in dismissing the interim application filed under Order 39 Rules 1 and 2 of the Civil Procedure Code, this appeal has been filed by the plaintiff-appellant. 2. The brief facts of the case are as follows : The present appellant as plaintiff filed Civil Suit No.375 of 2007 for partition. He pleaded that he is the adopted son of one Kailash Chandra Biswal. The said adoption took place in the year 1999. From the date of adoption, he was brought up by said Kailash and his wife Santilata Biswal, the present respondent No.1, as son. His adoption was not disputed during the life-time of Kailash who died suffering from cancer in the year 2001. Santilata has got five sisters. The second sister, namely, Raji married to one Birabara Jena of Mohajanpur. On the ill-advice, said Birabara attempted to dispose of the property by utilizing the power of attorney. In order to alienate the suit property and deprive the plaintiff, they took such steps. Hence, the plaintiff filed the suit for partition and setting aside the power of attorney as illegal and void. 3. In the suit, the plaintiff appellant filed an applica¬tion under Order 39 Rules 1 and 2 of the Civil Procedure Code not to transfer the suit property during the pendency of the suit, to avoid multiplicity of proceeding, keep the suit property avail¬able for partition and maintain status quo. The respondents filed their objection separately. The alleged adoptive mother stated in her objection that the petition filed under Order 39 Rules 1 and 2 of the Civil Procedure Code is not maintainable. She stated that the plaintiff-appellant is a stranger to the family and falsely claiming himself to be the adopted son of Kailash. She also traversed all the allegations made in the interim applica¬tion for injunction. In order to grab the property of her family, Bidyadhar Biswal set up his son the present plaintiff to file the suit. The disputed property belonged to Hrudananda and Kailash. In the Hal R.O.R., their names were published jointly. Kailash had eight annas share in the said property. The said property is described in Lot No.1. In order to grab the property of her family, Bidyadhar Biswal set up his son the present plaintiff to file the suit. The disputed property belonged to Hrudananda and Kailash. In the Hal R.O.R., their names were published jointly. Kailash had eight annas share in the said property. The said property is described in Lot No.1. Kailash acquired the property described in Lot No.2 out of his own income and after his death defendant No.1 succeeded to the said property. She also acquired the property described in Lot No.3. In the consolidation R.O.R., she has been recorded as the owner of the property. Therefore, she prayed that as the plaintiff-appellant is not the adopted son, his interim application was liable to be rejected. 4. Respondent No.2 filed a separate objection supporting the plea of respondent No.1. The Court below, considering the pleadings and the materials available on record, came to the finding that the suit land is possessed by respondent No.1 and she has executed a registered power of attorney in favour of respondent No.2. Plaintiff-appellant was not able to prove that he had a prima facie case. The balance of convenience also did not lean in favour of the plaintiff appellant. In the absence of prima facie case in favour of the plaintiff appellant, if injunc¬tion was not granted he would not suffer irreparable loss. There¬fore, the Court below dismissed the said interim application. 5. Learned counsel appearing for the plaintiff appellant submitted that the validity of adoption depends upon the proof of various facts and documents would not substitute the proof of the formalities by which an adoption is to be established. Therefore, to prove prima facie case regarding adoption, no document is necessary and on that ground the interim application of the plaintiff-appellant should not have been rejected by the Court below. In support of his submissions, he cited the decisions of this Court in the cases of Laila Bibi and others v. Asha Bibi and others reported in 84(1997) CLT 397 and Hemanta Kumar Maojee and others v. Harilal Amarai and another reported in 1994 (II) OLR 223. 6. Learned counsel appearing for the respondents submitted that to get an order of injunction, the plaintiff-appellant has to prove prima facie case, balance of convenience and irreparable loss or injury. 6. Learned counsel appearing for the respondents submitted that to get an order of injunction, the plaintiff-appellant has to prove prima facie case, balance of convenience and irreparable loss or injury. As the plaintiff-appellant was not able to prove his prima facie case, the trial Court rightly rejected his application for injunction. Therefore, there is no illegality or impropriety in the impugned order. Hence, the same need not be interfered with. 7. Law is well settled that to get the order of injunction a person has to prove his prima facie and balance of convenience is in his favour and if such an order of injunction is not passed he will sustain irreparable loss or injury. In the present case, since the parties have not yet proceeded with the case and the claim of the plaintiff-appellant is that he is the adopted son of the original owner, he has to prove the plea of adoption to establish his right over the property. 8. From the record it appears that in support of his plea of adoption the plaintiff-appellant has not adduced any documen¬tary or oral evidence to prove the same. Even in an application under Order 39, Rules 1 and 2 of the Civil Procedure Code the parties have to prove their case by filing documentary as well as oral evidence, if such occasion arises. 9. In the present case, since the question of adoption is in dispute, the parties should have adduced evidence in order to prove their respective pleas. Since the plaintiff-appellant has not adduced any evidence in respect of his plea, the trial Court has rightly rejected his plea. The facts of Laila Bibi’s case (supra) and Hemanta Kumar Maojee’s case (supra) cited by the learned counsel for the plaintiff-appellant being different from that of the present case, the said decisions are not applicable to the present case. 10. The order refusing temporary injunction is of a discre¬tionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion by the trial Court and substitute its own discretion. Further in the case of Somanath Bhataria v. Punananda Bhataria & others reported in 72 (1991) CLT 319 cited by the learned counsel for the appellant, this Court while con¬sidering the fact whether the consolidation authorities have jurisdiction to consider the question of adoption held that document is not required to prove or disprove adoption. Further in the case of Somanath Bhataria v. Punananda Bhataria & others reported in 72 (1991) CLT 319 cited by the learned counsel for the appellant, this Court while con¬sidering the fact whether the consolidation authorities have jurisdiction to consider the question of adoption held that document is not required to prove or disprove adoption. Validity of adoption depends upon proof of various facts. However, the parties have not adduced any iota of evidence in the present case. Therefore, the said decision is also not applicable to the facts of the present case. 11. As there is no illegality or impropriety in the im¬pugned order, this Court is not inclined to interfere with the same. Accordingly, the appeal is dismissed. No costs. Appeal dismissed.