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2014 DIGILAW 317 (ORI)

Kamala Dash v. Rama Pratap Kheria

2014-05-13

RAGHUBIR DASH

body2014
JUDGMENT RAGHUBIR DASH, J. 1. This appeal is in challenge of the order of dismissal of I.A. No. 246 of 2013 passed by the learned Civil Judge (Senior Division), Jajpur on 04.11.2013. 2. The Appellants are the plaintiffs-petitioners before the learned lower court. They have filed C.S. (I) No. 371 of 2013 seeking partition of the suit land along with other reliefs. Their case is that the suit land which stood recorded in the name of late Udayanath Dash in the consolidation R.O.R. published in 1984 is the ancestral property of the plaintiffs and other successors-in-interest of late Udayanath Dash. The plaintiffs have 8 annas interest in the suit land. But the other successors-in-interest of Udayanath Dash have alienated the entire of the suit land in favour of the defendant Rama Pratap Kheria under registered sale deed No. 1166 dated 11.06.2012. A specific stand taken by the plaintiffs-Appellants is that the said Udayanath Dash died in the year 1993-94 leaving behind his only son Biswanath Dash who died in 2004 and only daughter Mukta Dash, who died in the year 2006. Biswanath Dash died leaving behind his widow, two sons and two daughters, who are still alive. There is no partition of the joint family properties left behind by Udayanath Dash, who died intestate. Without there being any partition the successors-in-interest of late Biswanath Dash have sold the entire suit land to the defendant-Respondent falsely stating in the sale deed that Udayanath Dash had no legal heirs other than the vendors under the impugned sale deed. It is claimed that since the Appellant have got 50% share in the suit land, the sale transaction is void to the extent of their share. 3. It is further alleged that having obtained the sale deed the defendant-Respondent is trying to raise boundary wall over the suit land and to convert the nature and character of the land by filling sand and soil. Hence, the petition for interim injunction. 4. The stand taken by the defendant-Respondent before the learned lower court is that the Appellants are no way related to said Udayanath Dash. They being strangers to the suit property cannot maintain the suit for partition. Though his vendors are necessary parties but they have not been impleaded. The suit for partition simplicitor without seeking declaration that the Appellants are the co-sharers in respect of the suit land is not maintainable. They being strangers to the suit property cannot maintain the suit for partition. Though his vendors are necessary parties but they have not been impleaded. The suit for partition simplicitor without seeking declaration that the Appellants are the co-sharers in respect of the suit land is not maintainable. It is also not maintainable on the ground that the suit land is a Chaka land and partition, if allowed, would create fragmentation. 5. Learned lower court has dismissed the I.A. mostly on the ground that the plaintiffs-petitioners have not filed a single scrap of paper showing that Mukta Dash, their predecessor-in-interest, is the daughter of Udayanath Dash. That apart, it is observed, the legal heir certificate relied on by the defendant-opposite party does not reflect them as legal heirs of Udayanath Dash. It is also observed by the learned lower court that since the original relief of partition cannot be granted in view of the specific bar under Section 34 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (for short, the Act of 1972), no interim relief can be granted. It is also observed that plaintiffs-petitioners have filed no document to show that they are in possession of the suit land or any part thereof. 6. Learned counsel for the Appellants submits that the reasons cited by the learned lower court are erroneous and unsustainable. On the other hand, learned counsel for the Respondent argues in support of the findings recorded by the learned lower court. 7. As it appears, the learned lower court has rejected the petition for interim injunction on the ground of maintainability of the suit. Merely because the plaintiffs-Appellants have not produced any document to establish their relationship with late Udayanath Dash, the suit for partition cannot be said to be not maintainable. Even without the assistance of documentary evidence, the Appellants can establish their relationship with Udayanath Dash by adducing admissible oral evidence. As regards non-impletion of the legal heirs of Biswanath Dash as parties to the suit, the Court may pass appropriate order under Order 1 Rule 10(2), C.P.C. but, merely on that ground the prayer for interim relief cannot be rejected. That apart, learned lower court while dealing with the I.A. should not have expressed his opinion that the suit is not maintainable in view of the provisions contained in Section 34 of the Act of 1972. That apart, learned lower court while dealing with the I.A. should not have expressed his opinion that the suit is not maintainable in view of the provisions contained in Section 34 of the Act of 1972. The same view, without further materials on record, is not sustainable in the eye of law. The said provision does not disentitle any of the co-sharer his or her legitimate interest in the chaka land however small in area it might be. Furthermore, learned lower court has lost sight of the stand taken by the Respondent that he has converted the suit land to homestead. After such conversion there would be no bar under Section 34 of the Act of 1972 against creating fragmentation. 8. Learned court below has observed that the plaintiffs-petitioners have failed to establish that they are in possession of the suit land or any part thereof. But it is well settled that a co-sharer has right on every inch of land belonging to the joint family. It is also well settled that one of the co-sharers cannot alienate any specific portion of the joint family lands without the consent of the other. Therefore, even in the absence of any proof of averments that the Appellants are in possession of the suit lands, the prayer for interim injunction cannot be disallowed. 9. Till the maintainability or otherwise of the suit is decided, it is to be presumed that the Appellants, who claim to be the successors-in-interest of Udayanath Dash, raise a substantial question, bona fide, which needs investigation and a decision on merit. In that sense the Appellants have got a prima facie case. So far the balance of convenience as well as irreparable injury is concerned, in a suit for partition it is desirable that the parties should maintain status quo during the pendency of the suit. Unless the status quo is maintained and in case a preliminary decree for partition is passed, difficulty would arise for adjustment and equities during final decree proceeding. That apart, in a partition suit a party should not be allowed to make valuable construction by spending a huge amount as on that event that party would claim the constructed portion to be allotted to his share and there is likelihood of the other co-sharer to be asked to remain satisfied with some compensation which may not be adequate. That apart, in a partition suit a party should not be allowed to make valuable construction by spending a huge amount as on that event that party would claim the constructed portion to be allotted to his share and there is likelihood of the other co-sharer to be asked to remain satisfied with some compensation which may not be adequate. In that view of the matter the ingredients of balance of convenience and irreparable injury exist in favour of the Appellants. If the nature and character of the suit property is allowed to be changed during pendency of the suit it would cause irreparable loss to the Appellants because the Respondent has already obtained order of conversion of the agricultural land into homestead land and he wants to use the suit land as stockyard by spending huge amount. 10. Learned counsel for the Respondent submits that grant of interim injunction is an equitable relief which should not be extended to the Appellants in as much as they have kept quiet for a long time without taking any steps to get their names recorded in the R.O.R. and thereby they have allowed the Respondent to believe that save and except the legal heirs of Biswanath Dash there are no other co-sharers in respect of the suit property. In this regard, it is also contended that they have not made any claim over the suit land since the death of the recorded tenant. Such contentions are not tenable. The Respondent should have made due enquiry to ascertain whether any other co-sharers have been left out by his vendors. The Appellants have moved the Court as early as possible to make a prayer for interim injunction without allowing the Respondent to take up huge constructions over the suit land. Had it been so, it could have been argued that the Appellants disentitled themselves to avail the equitable relief. 11. Considering the facts and circumstances of the case, the prayer for interim injunction ought to be granted. Accordingly, the appeal is allowed. The impugned order is set aside. The I.A. is allowed. The defendant-opposite party and his men and agents are restrained from changing the nature and character of the suit land save and except with the permission of the court and/or creating any third party interest in the suit land till disposal of the suit. Parties shall bear their own cost.