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2015 DIGILAW 321 (ORI)

Surendra Moharana v. Rajkishore Moharana

2015-05-08

S.PANDA

body2015
JUDGMENT : S.PANDA. J. Petitioner in this application has challenged the order dated 18.11.2014 passed by learned District Judge, Cuttack in F.A.O. No. 50 of 2014 while dismissing the appeal confirmed the order dated 20.03.2014 passed by learned Senior Civil Judge, 1st Court, Cuttack in Interim Application No. 614 of 2013 arising out of C.S. No. 297 of 2013 allowing an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure. 2. The present opposite party Nos. 5 and 6 as plaintiffs filed the aforesaid suit for partition and confirmation of their respective possession in respect of suit Schedule 'A, 'B' & 'C' properties. In the relief they have specifically seeking a direction against defendant Nos. 1 to 3 to allow the plaintiffs and other defendants to use AC.0.03 dec. of land which is situated in between Schedule-A and Schedule-B as common passage. The defendants have not filed their written statement. 3. While matter stood thus the defendant Nos. 1, 2, 12 and 13 filed Interim Application No. 614 of 2013 under Order, 39 Rule, 1 & 2 of the C.P.C. impleading the plaintiff$ and defendant No.4 as opposite parties only without impleading other defendants. In the said application they have prayed for ad .interim order of injunction restraining the opposite parties from raising any construction on the schedule land appended to interim application till disposal of the suit. The schedule of land appended to the interim application in respect Hal Khata No. 932, Plot No. 823 measuring an area of AO.184 dec. kissam of land gharabari which is the suit schedule 'C' land. The plaintiffs have filed their objection traversing the allegation made in the interim application. They have specifically contended that the applicants have not come to court with clean hand. During pendency of the suit they have approached the Executive Magistrate, Cuttack in Criminal Misc. Case NO.1001 of 2013 proceeding under Section 144 of Cr.P.C. suppressing the fact regarding pendency of the suit. The said proceeding was dropped as the suit is pending. They have also contended that the plaintiffs and all the defendants are constructing their residential structure over the suit schedule properties. They being separated in mess with respect to more or less of their respective shares. The plaintiffs and defendant Nos. The said proceeding was dropped as the suit is pending. They have also contended that the plaintiffs and all the defendants are constructing their residential structure over the suit schedule properties. They being separated in mess with respect to more or less of their respective shares. The plaintiffs and defendant Nos. 1 and 2 are residing over suit Schedule 'A' property and the defendant No.4 along with other defendants residing over suit schedule 'C' properties by making construction with thatched roof from the time of their father. The said thatched house became damaged due to heavy rain in October, 2013 and wall of the house fell down for which the defendant No.4 renovated the old standing structure to the extent of his share as per amicable settlement between the parties dated 03.12.2012. The interim applicants Rajkishore Moharana and Brajakishore Moharana are the signatories. The interim application is not maintainable over the entire area of A0.134 decimals without impleading the other cosharer who are in possession of the said land as per allotment made on 03.12.2012. As the applicants have not fulfilled the three ingredients of injunction they are not entitle to the relief sought for and their application liable to be dismissed. In support of their respective contention they have produced the document regarding amicable settlement entered into by the parties in respect of the suit schedule 'C' property. In the said document sketch map reflected partition of the land into 'A', 'B', 'C', 'D', along with E and E/1 with vacant passage towards Western, North side and Eastern side. 4. The parties have also filed an application for deputation of a Commissioner. Accordingly one pleader commissioner was deputed who has submitted his report on 07.02.2014 which reveals that an old cement flooring available on the proposed room shown by letter 'A' of the rough sketch map which covers the entire proposed room. The proposed room shown by letter 'B' of the rough sketch map constructed up to plinth level and there is no flooring. All the construction except old flooring of proposed room shown in letter 'A' of rough sketch map are appears to be new. The court below after hearing the parties allowed the interim application by order dated 20.03.2014.and restrained the opposite parties raising construction over the suit schedule land till disposal of the suit. 5. All the construction except old flooring of proposed room shown in letter 'A' of rough sketch map are appears to be new. The court below after hearing the parties allowed the interim application by order dated 20.03.2014.and restrained the opposite parties raising construction over the suit schedule land till disposal of the suit. 5. The present petitioner filed F.A.O. No. 50 of 2014 challenging the said order passed by the trial court. During pendency of the F.A.O. by order dated 16.05.2014 the appellate court as an interim measure directed that since the summer vacation is approaching and the house in possession of the appellant seems to be in dilapidated condition, he is only allowed to take up minimum necessary repair to make it habitable without changing the basic structure or putting any pucca roof over the house situated over the suit property. Thereafter by order dated 18.11.2014 the appellate court has confirmed the order passed by the trial court and held that if the construction will be allowed the other co-sharers will be put to inconvenience compared to the inconvenience of the opposite parties. 6. Learned counsel for the petitioner contended that the plaintiffs have categorically stated that there is amicable settlement between the parties and they are in possession of their respective shares which was not disputed by the present opposite parties who have filed the interim application. It was also specifically stated that the present petitioner after discussion with the plaintiffs along with other co-sharers accorded permission and made his construction over only Ac.0.011 dec. of land which is within his share over the schedule property of the interim application and not over entire land. The other co-sharers who are not impleaded in the interim application are also possessing the said land allotted to them. Hence, interim application is not maintainable. The petitioner has also filed a memo of undertaking with affidavit. before the trial court that he will not claim any equity for the construction of the residential house over the part of suit schedule 'C' land in case the said construction is found to be more than the share of the defendant No.4. Both the courts below have not considered the said undertaking furnished by the petitioner claiming no equity over the construction therefore, the impugned orders are perverse and liable to be interfered with. Both the courts below have not considered the said undertaking furnished by the petitioner claiming no equity over the construction therefore, the impugned orders are perverse and liable to be interfered with. He has also filed certain documents before this Court which reveals that parties separately dealt with the property by executing different sale deeds in respect of the property. In those sale deeds it was also reflected after death of the father the vendor along with other co-sharers have amicably partitioned the properties and possessing the same without any disturbance whatsoever' and alienated the land for construction of new house and to meet household expenses etc. The interim applicants also alienated the properties in the year 2010. In view bf the above the impugned orders are not sustainable in layv. I n support of his contention he has cited I the decisions reported in 2014(1) CLR 327 : 2014 (I) OLR 3061, Anam Charan Behera and Others V. Adikanda Patra and Others, 2010 (I) CLR (SC) 305, Kishorsinh Ratansinh Jadeja V. Maruti corporation & Others, A.I.R. 1962 ORISSA 31, Lingaraj Misra and Others V. Bhubaneswar Mohapatra and others. 7. Learned counsel for the opposite parties while supporting the impugned orders filed a counter affidavit along with the copy of the R.O.R. The said R.O.R. reveals that the land recorded jointly and the R.O.R. was published on 13.03.1991 in the name of father of the present petitioner and father of opposite parties who are predecessors in interest of the parties. In view of the joint recording the properties stand jointly and not partitioned as per metes and bounds. The courts below rightly injuncted the petitioner not to make any permanent construction over the land which will prejudice to other co-sharers. In support of his contention he has cited the decisions reported in 1986 (1) OLR 145, Narayan Bisoi and another V. Raghunath Bisoi, 84 (1997) C.L.T. 397, laila Bibi and others V. Asha Bibi and others, 75 (1993) C.L.T. 194, Paramananda Patra and others V. Daitary Prasad Patraand another. 8. In support of his contention he has cited the decisions reported in 1986 (1) OLR 145, Narayan Bisoi and another V. Raghunath Bisoi, 84 (1997) C.L.T. 397, laila Bibi and others V. Asha Bibi and others, 75 (1993) C.L.T. 194, Paramananda Patra and others V. Daitary Prasad Patraand another. 8. In the case of Lingaraj Misra (supra) wherein it was held that a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction. While a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers by erecting structures thereon the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. The said view also reiterated in the case of Anam Charan Behera (supra) and the court has held that unless partition is proved a Hindu family is presumed to be joint and separation in mess is not a conclusive proof of partition. Materials available on record reveals that the suit property was partitioned earlier for which property was being separately dealt with by them which leads to a presumption that the joint family properties were partitioned earlier. The Apex Court in the case of Kishorsinh Ratansinh (supra) held that while considering an application for injunction court is also required to, consider the conduct of the parties which are relevant apart from the prima-facie case, balance of convenience, irreparable loss and injury. Further held that if the owners of the property remain restrained from developing the same it will suffer severe prejudice as they will be deprived of the benefit of the user of their land. The balance of convenience and inconvenience is against grant of such injunction. 9. Further held that if the owners of the property remain restrained from developing the same it will suffer severe prejudice as they will be deprived of the benefit of the user of their land. The balance of convenience and inconvenience is against grant of such injunction. 9. In the case of Narayan Bisoi (supra) wherein it was held that unless there is complete partition by decree of court, any party should not be allowed to raise valuable construction on disputed land and status quo should be maintained. The house and homestead shall be treated as joint family property until and unless it is proved that by the deed of partition there was a complete partition thereof by metes and bounds. The same view also reiterated in the case of Laila Bibi(supra) and in the case of Paramananda Patra (supra). However the aforesaid decisions of this Court are not applicable in the present case as the fact and circumstances are different. 10. In the present case the petitioner has filed an undertaking not to claim any equity in respect of any construction made over the land merely on the basis of construction in case the suit is decreed and partition is allowed. The present petitioner will suffer substantial injury if construction work is stopped as he has invested money and obtained permission for construction. It is well settled that when construction has been made on a land and when the applicant shall not face any substantial injury if order of injunction is granted as an undertaking furnished not to claim any equity for such construction by the defendants if ultimately the suit filed is decreed the party can be compensated any damages or the defendants may be directed to pull down the construction and deliver vacant possession to the applicant for injunction. In such a situation an order of injunction if granted against the defendants from proceeding with further construction in the suit property it will undoubtedly destroy the constructions already made by and he will suffer irreparable loss and injury for not allowing him to make such construction as such balance of convenience in his favour Being a co-sharer he has a prima-facie case as parties have already dealt with the property separately pursuant to the amicable settlement. Hence the impugned orders passed by the courts below are error apparent on the face of the record. Hence the impugned orders passed by the courts below are error apparent on the face of the record. The aforesaid view also fortified taking into consideration the decision of the Apex Court in the case of ECE Industries Limited V. S.P.Real Estate Developers Private Limited and Another reported in JT 2009(11) SC 30. 11. In view of the discussions made hereinabove and considering the aforesaid settled position this Court sets aside the impugned orders in exercising the jurisdiction under Article 227 of the Constitution of India. Liberty is granted to the petitioner to complete the construction over the part of suit schedule 'C' land which was allotted to his share with a mark of 'A' portion in the sketch map appended to the Interim Application in view of the undertaking furnished by him. Accordingly the Civil Miscellaneous Petition is allowed.