Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 134 (ORI)

Soubhagya Kumar Dash v. Sulekha Das @ Samantray

2014-02-20

RAGHUBIR DASH

body2014
JUDGMENT:- RAGHUBIR DASH,J This appeal is against the Order Dated 08.08.2013 passed by Learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. NO.327 of 2013 arising out of C.S.(I) NO.349 of 2013. 2. The Petitioner for interim injunction before the learned lower Court is Respondent No.4 in this appeal; Opp. Party NO.3 in the I.A. is the Appellant herein. Opp. Party Nos.1, 2 & 4 in the I.A. are Respondent Nos.1 to 3, respectively. To avoid confusion, the parties to this appeal, hereinafter, be referred to as per their description in the cause title of the I.A. 3. Vide the impugned order, the Learned lower Court has granted temporary injunction against the Opp. Parties from raising any construction over the case property, besides restraining them from alienating any portion of the case property till disposal of the suit. 4. Facts which are not in dispute between the parties are that late Manmohan Samantray died leaving behind his six sons, namely, Dilip, Ajit (Petitioner), Bibhudutta (husband of Opp. Party No.1 & father of Opp. Party No.2), Sudhir, Bimal & Sukumar (he is unheard of for last 30 years). The case property left behind by said Manmohan is recorded as dwelling house in the names of Plaintiff & his brothers. 5. The Petitioner's case is that their father Manmohan had constructed two pucca buildings over the case plot wherein their family members were residing jointly under one roof. After the death of his father, the Petitioner has been residing in the eastern side of the building & his brother late Bibhudutta in the western side of the building. After the death of Bibhudutta in the year 2002, disturbances between the brothers & the legal heirs of Bibhuduta for partition of the suit land came to surface. Though a meeting was convened for partition of the case building no consensus could be arrived at. One Amin Commissioner was called to measure the case land but it did not materialize. During the visit of Amin Commission, Opp. Party No.3, who is stranger to the family, gave out that he had purchased a portion of the suit plot from one of the co-shares. He also threatened to construct a building over his purchased portion. While he started demolishing the existing building, the Petitioner initiated a proceeding under Section 144(2) of the Cr. Party No.3, who is stranger to the family, gave out that he had purchased a portion of the suit plot from one of the co-shares. He also threatened to construct a building over his purchased portion. While he started demolishing the existing building, the Petitioner initiated a proceeding under Section 144(2) of the Cr. P.C. While pursuing that proceeding, the Petitioner further came to know that Opp. Party No.4, who is another stranger to the family had obtained a compromise decree in C.S. No.508 of 2009 between herself & Opp. Party Nos.1 & :2 (widow & son of late Bibhudutta) in respect of a portion of the case land. It is his specific case that in the compromise decree it is shown that the Petitioner, amongst others, had sworn an affidavit admitting that he had no objection to the claim of Opp. Party No.4-Ratnamanjari Pani. But, as a matter of fact, he has not sworn any such affidavit. According to him the case property which is a dwelling house has not yet been partitioned by metes & bounds between the co-sharers. 6. The present Appellant as Opp. Party No.3 before the Learned lower Court had taken the stand that on 27.10.1995 all the five brothers of the Petitioner executed an unregistered partition deed allotting specific portion of the case land amongst themselves & later on the eldest brother Dilip Samantray sold his portion of the case land to one of his brother, namely, Bimal Kumar Samantray. Subsequently, Ratnamanjari Pani instituted C.S. No.508 of 2009 against said Dilip Samantray & Bimal Kumar Samantray & got the share of those two brothers by way of a compromise decree based on a compromise petition signed by all the brothers including the Petitioner. Thereafter, late Bibhudutta sold his portion of the case land to the present Appellant-Opp. Party No.3 by executing a sale deed on 07.05.2011 & since then he has been living in a portion of the suit house with his family. Opp. party No.1 & 2, who are the widow & son of late Bibhudutta have supported the stand taken by the present Appellant-Opp. Party NO.3. They admit that the house & homestead which is the subject matter of the suit has already been partition by metes & bounds. 7. The stand taken by Ratnamanjari Pani, Opp. Party No.4 is similar to that of the Appellant. Party NO.3. They admit that the house & homestead which is the subject matter of the suit has already been partition by metes & bounds. 7. The stand taken by Ratnamanjari Pani, Opp. Party No.4 is similar to that of the Appellant. She claims that she has been in possession of the portion of the case property in respect of which she has got decree in C.S. No.508 of 2009. 8. Before the Learned lower Court, the parties did not adduce oral evidence but filed their respective documents. Considering the documents & the submissions made on behalf of the parties, Learned lower Court observed that all the three ingredients required for granting temporary injunction exist in favour of the Petitioner. So the interim relief as stated earlier has been granted. On behalf of the Appellant it is argued that the Learned Court below has not properly appreciated the materials on record & has committed serious error of law in granting injunction against the Appellant restraining him from carrying on the renovation work in respect of the portion of the house & homestead- that he has purchased from his vendors. It is submitted that none of the three ingredients required to be satisfied for getting temporary injunction could be shown by the Petitioner. Rather the Appellant-Opp. Party No.3 has got a good prima facie case, the balance of convenience lies in his favour & he would suffer irreparable injury if the interim order is allowed to continue. 9. Learned Counsels for Opp. Party Nos.1, 2 & 4 also take the same stand as the Appellant-Opp. Party No. 3 on the other hand, Learned Counsel for the Plaintiff-Petitioner has argued in support of the impugned order. 10. Making observation that the case property being undivided dwelling house of all the sons of late Manmohan & that Opp. Party Nos.3 & 4 being strangers to the family of Manmohan, with further observation that the claim that the case property has already been partitioned by metes & bounds in terms of an unregistered Bantana Patra of the year 1995 would be decided in the original suit, the Learned lower Court has held that the Petitioner has got prima facie case & the balance of convenience lies in his favour & he will sustain irreparable loss if the Opp. Parties would be allowed to change the status quo of the property by way of raising permanent construction over it. The Plaintiff-Petitioner claims that his signatures in an unregistered Santana Patra of the year 1995 & the affidavit basing on which the compromise decree has been passed in C.S. NO.508 of 2009 have been obtained by fraud. Thus, he is presumed to have made admission that he has signed on the Santana Patra as well as the affidavit filed in C.S. NO.508 of 2009. 11. It is not in dispute that pursuant to the Santana Patra, one of the brother Dilip Samantray has sold a part of the case property allotted to his share to another brother, namely, Bimal Sarnantray vide a registered sale deed of the year 2010. It is also not in dispute that the said Bimal Samantray has entered into a compromise with Ratnamanjari Pani (Opp. Party No.4) & on the basis of that compromise, C.S. No.508 of 2009 has been decreed in respect of the portion of the case property allotted to the share of Bimal Samantray & the portion he has purchased from his brother Dilip Samantray. It is admitted that the Plaintiff-Petitioner is a signatory to the Santana Patra so also one affidavit filed in C.S. NO.508 of 2009 in which the brothers have declared that they have no claim over the portions claimed by Ratnamanjari. Pursuant to that affidavit the compromise decree has been passed in C.S. NO.508 of 2009. Filing the suit for partition, the Petitioner alleges that his signatures on the Santana Patra as well the affidavit have been obtained by practising fraud. The Petitioner seems to be an educated person. So, the plea of fraud cannot be readily accepted. One may be defrauded once but in this case the Petitioner is signatory to two different documents, one executed in the year 1995 & another about 15 years thereafter in respect of the self-same property. It is difficult even at this stage to believe that on both the occasions he was deceived by own brothers. So, heavy onus lies on him to prove that plea. Opp. Party Nos.3 & 4 have claimed that they are in occupation of portions of the case property. The Petitioner has not made any prayer for interim injunction restraining Opp. Party Nos.3 & 4 from entering into the property in question. So, heavy onus lies on him to prove that plea. Opp. Party Nos.3 & 4 have claimed that they are in occupation of portions of the case property. The Petitioner has not made any prayer for interim injunction restraining Opp. Party Nos.3 & 4 from entering into the property in question. It seems he has no objection to the strangers occupation over portions of the case property. Under such facts & circumstances, the Petitioner cannot be said to have got a strong prima facie case. 12. With regard to balance of convenience & irreparable injury it is to be stated that Opp. Party No.3 has raised construction over the portion of the case property which he has purchased from one of the brothers Bibhudutta Samantray. It is submitted that the concrete roof has already been cast & in the existing old house over his purchased portion his parents are staying. As already stated, the Plaintiff-Petitioner has not sought for interim relief in the nature of temporary injunction restraining the stranger purchasers from entering into the case property. 13. Learned lower Court observed that Opp. Party NO.3 proceeded with the construction violating the order of status quo passed by this Court in W.P.(C) NO.13920 of 2013. In this regard, it is rightly submitted by Learned Counsel for the Appellant that such an observation, without the fact of alleged violation having been proved, should not have been made by the Learned lower Court. 14.ln the case of Khiroda Prasad Routray Vrs. Smt. Satyabhama Routray & others, 1986 (II) OLR (NOC) 22, this Court has observed that a half constructed house is beneficial to no party & therefore, balance of convenience lies in completion of the construction. With that observation, it was further added that giving permission to proceed with the construction would not, however, give any equity to the party on the ground that he has completed the construction spending huge amount. Opp. Party No.3, who has proceeded with the construction in question has undertaken not to claim any equity, if ultimately he fails in the suit. He also undertakes not to alienate the suit property till disposal of the suit. In this premises, this Court is satisfied that balance of convenience leans in favour of Appellant-Opp. Party No.3 & he would suffer irreparable injury, if he is restrained from making further construction till disposal of the suit. 15. He also undertakes not to alienate the suit property till disposal of the suit. In this premises, this Court is satisfied that balance of convenience leans in favour of Appellant-Opp. Party No.3 & he would suffer irreparable injury, if he is restrained from making further construction till disposal of the suit. 15. In the result, the impugned order injuncting the Opp. Parties temporarily from raising any construction over the case property is liable to be set aside. The Appellant-Opp. Party NO.3 may proceed with further construction but shall, under no circumstance, claim any equity if ultimately he fails in the suit. However, the interim injunction with regard to alienation of any portion of the case property till disposal of the suit is confirmed. The appeal is disposed of accordingly. There shall be no order as to cost.