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2012 DIGILAW 163 (ORI)

Shanti Devi Kejriwal v. Gouri Sankar Kejriwal

2012-03-27

M.M.DAS

body2012
JUDGMENT M.M. DAS, J. This appeal has been filed against an order dated 16.01.2012 passed in I.A. No.32 of 2011 arising out of C.S. No.105 of 2011 by the learned Civil Judge (Senior Division), Titlagarh by which, the said I.A. was dismissed. 2. Facts of the case in brief are that the appellant as plaintiff filed the suit, being, C.S. No.105 of 2011, for declaration that the suit schedule property is the joint family property of the parties and for a further declaration that the registered WILL bearing No.124 dated 24.11.2004 executed by Bhagabati Bai Kejriwal, as void and for permanent injunction. 3. The case of the appellant as plaintiff is that the respondent – defendant, with an intention to grab the entire suit property and to deprive the plaintiff and the other defendants in the suit in a fraudulent manner, manufactured the WILL dated 24.11.2004 purported to have been executed by late Bhagabati Bai Kejriwal, while she was bed ridden, who subsequently died on 26.03.2008. The plaintiff further pleaded that the defendants 1 and 2, i.e., the present respondent, who is defendant No.1 in the suit connived with defendant No.2 in not allowing late Bhagabati Bai Kejriwal to manage the suit property. On the other hand, they managed to execute the forged and fabricated WILL in favour of the respondent – defendant No.1. Thereafter, an application was made to mutate the suit land in favour of the defendant No.1, which was allowed by the Tahasildar, Titlagarh on 04.03.2008 by recording that the testator Bhagabati Bai Kejriwal has died on 26.03.2008, which ex-facie shows that the order in the mutation case was passed prior to the death of the testator. It is further alleged by the plaintiff that the respondent tried to demolish the building standing over the disputed property phase by phase. The I.A. No.32 of 2011 was filed by the appellant – plaintiff for an order of interim injunction. Initially, an order of status quo was passed by the learned trial court. 4. It appears that thereafter, an application was filed by the plaintiff for extension of the status quo order, which being rejected, the plaintiff – appellant filed W.P.(C) No.26811 of 2011 before this Court. This Court by order dated 29.09.2011 directed maintenance of status quo as an interim measure. 4. It appears that thereafter, an application was filed by the plaintiff for extension of the status quo order, which being rejected, the plaintiff – appellant filed W.P.(C) No.26811 of 2011 before this Court. This Court by order dated 29.09.2011 directed maintenance of status quo as an interim measure. After the respondent appeared in the said writ application, this Court in its order dated 27.10.2011 disposed of the writ application allowing the interim order of status quo dated 29.09.2011 passed in the said writ application, to continue and remain in operation till disposal of the interim application by the learned trial court. The appellant further alleges that he filed an application for violation of the order of status quo, which is still pending disposal and without disposing of the said application, the learned trial court disposed of I.A. No.32 of 2011 by the impugned order, dismissing the same. 5. Learned counsel for the appellant submits that in the meantime, on filing a review application, the Tahasildar, Titlagarh recalled his previous order allowing mutation of the disputed property in favour of the respondent and directed the record-keeper to cancel the ROR of Khata No.463/813 and restore the same in the name of late Bhagabati Bai Kejriwal. 6. Mr. Mohanty, learned senior counsel for the appellant vehemently urged that the learned trial court, in the impugned order, though has observed that the appellant – petitioner might have a prima facie title, which can only be decided in the original suit, but basing on the WILL, which is the subject matter of dispute in the suit, came to the conclusion that there is no balance of convenience in favour of the appellant and the appellant will not suffer from any irreparable injury, if a construction is raised over the disputed property by the respondent. He, therefore, submitted that in the facts and circumstances of the case, the balance of convenience is in favour of granting an order of injunction and if the respondent is not restrained from raising construction over the disputed property, the appellant will suffer from irreparable injury. 7. Mr. Samal, learned counsel on behalf of the respondent, on the contrary, submitted that there is no prima facie material to show that the property did not belong to late Bhagabati Bai Kejriwal and was purchased out of the joint family nucleus. 7. Mr. Samal, learned counsel on behalf of the respondent, on the contrary, submitted that there is no prima facie material to show that the property did not belong to late Bhagabati Bai Kejriwal and was purchased out of the joint family nucleus. He further submitted that the respondent has set up a diagnostic and research clinic over the suit land being permitted by his mother late Bhagabati Bai Kejriwal since 1990. The respondent demolished the dilapidated structure in the month of April, 2011 and got a new plan for construction of the building, approved from the Special Town Planning Authority, Titlagarh on 30.04.2011. Thereafter, the construction has been made till the roof level for which, the respondent has already invested a huge amount of money. He further submitted that the respondent is in possession over the property since 1990 and the respondent undertook that he would not claim any equity in case the plaintiff succeeds in the suit and shall not alienate or transfer the property in question nor shall create any third party interest thereon, if he is permitted to carry out the construction. 8. From the genealogy provided, it appears that the appellant – plaintiff is the widow of a pre-deceased son of late Bhagabati Bai Kejriwal and the respondent is her other son. 9. Mr. Samal, learned counsel for the respondent relied upon a decision in the case of Manohari Devi v. Choudhury Sibanava Das reported in AIR 1983 ORI 135 and contended that in the said case, this Court laid down that presumptive doctrine available in respect of property acquired in the name of any male member of the joint family is not applicable in case a property is standing in the name of female members. He also relied upon certain case laws with regard to presumption of a property being a joint family property. With regard to granting of an order of interim injunction, Mr. Samal relied upon a decision in the case of Dalpat Kumar and another v. Prahallad Singh and others reported in A.I.R. 1993 SC 276, which laid down that it is settled law that grant of injunction is a discretionary relief. With regard to granting of an order of interim injunction, Mr. Samal relied upon a decision in the case of Dalpat Kumar and another v. Prahallad Singh and others reported in A.I.R. 1993 SC 276, which laid down that it is settled law that grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff. The Court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right could be established at trial. The comparative hardship or mischief or inconvenience, which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is a prima facie case in his favour, which needs adjudication at the trial. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court, while granting or refusing to grant injunction, should exercise sound judicial discretion to find the amount of substantial mischief or injury, which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side, if the injunction is granted. 10. Mr. The Court, while granting or refusing to grant injunction, should exercise sound judicial discretion to find the amount of substantial mischief or injury, which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side, if the injunction is granted. 10. Mr. Mohanty, learned senior counsel submitted that the case laws relied upon by the respondent are not applicable to the facts of the present case specially in view of the fact that the respondent claims his exclusive title over the property in question basing on the WILL executed by his mother, who is the mother-in-law of the appellant – plaintiff and which the plaintiff has challenged to be a created / manufactured document with a prayer to declare the same as void. He further submitted that the ratio laid down in the case of Manohari Devi (supra) could have been applied, if the suit was filed against the testator Bhagabati Bai Kejriwal. 11. The WILL is a document, which deviates succession as per law and vests title over the property bequeathed on a person, who under law, would not have succeeded to the same or to the whole of it. 12. From the impugned order, I find that the learned trial court, after stating the respective cases and referring to a plethora of decisions, categorically came to the conclusion that the petitioner might have a prima facie title, which can only be decided in the original suit, but he has no prima facie case to restrain the opposite party from completing the structure of the suit house, since the opposite party is in possession of the suit house. This finding is palpably erroneous, as a “prima facie case” has been repeatedly interpreted by various judicial pronouncements to be a substantial question raised, bona fide, which needs investigation and requires a decision on merit. 13. However, it appears that the learned trial court came to a conclusion that the appellant claimed that the property belongs to the joint family, even if accepted, the opposite party is a co-sharer and it is the settled principle of law that one co-sharer cannot injunct another co-sharer. 13. However, it appears that the learned trial court came to a conclusion that the appellant claimed that the property belongs to the joint family, even if accepted, the opposite party is a co-sharer and it is the settled principle of law that one co-sharer cannot injunct another co-sharer. He also relied upon the ROR, which was prepared as per the order passed in the mutation case, which order has ultimately been recalled on review and the ROR has again been corrected to its original form. 14. In disagreement with the learned trial court, I find that the mutated ROR relied upon by the learned trial court is no more in existence, the WILLNAMA is disputed in the suit and if the plaintiff’s case ultimately is accepted that the property is a joint family property, the plaintiff would be entitled to a share and there is material before the Court that as stated by the plaintiff, a partnership deed existed, which may be a source of the acquisition of the suit property. Three ingredients required to be satisfied for grant of an interim order of injunction, have been satisfied inasmuch as before the impugned order was passed, the order of status quo was passed in the suit, which was directed to be continued, by this Court, till disposal of the interim application. Hence, the learned trial court should have granted the order of injunction as prayed for. 15. However, as it is evident from the materials that the respondent has already raised a construction over the disputed property after obtaining permission from the concerned authority, such order of injunction should not be allowed to continue for a long time, which would prejudice the respondent, in the event, the plaintiff becomes unsuccessful in the suit, a direction is required to be issued to dispose of the suit as expeditiously as possible. 16. In view of the above, the impugned order is set aside, parties are directed to maintain status quo over the disputed property and the respondent is restrained from raising any further construction over the same till disposal of the suit. The learned Civil Judge (Senior Division), Titlagarh is directed to dispose of C.S. No. 205 of 2011 by the end of September, 2012. 17. The F.A.O. is accordingly allowed.