Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 465 (ORI)

Subhalaxmi Panigrahi v. Rabinaryan Mishra

2015-08-06

D.DASH

body2015
JUDGMENT : 1. This appeal has been filed against an order passed by the learned Civil Judge (Sr. Divn.), Bhubaneswar in I.A. No. 802/2012, arising out of C.S. No. 1416/2012 in the matter of an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. By the said order, the learned Civil Judge (Sr. Divn.), Bhubaneswar has directed the parties to maintain status quo over the suit property during pendency of the suit. 2. Facts necessary for the purpose are as under:- Brajamohan Praharaj (Dead) = Padmabati (wife) Bidyutprava (Dft no. 1) = Ranganath (husband) (dead) Prasanna Krushnapriya Mitabashini Prabhati (dead) Raghunatha (Dft. no.2) Ramanuja (Dft. no.3) Babu (Dft. no.4) Subhalaxmi (Daughter) Dft.no.5 Rabinaryan (son) (plaintiff) (His father, brother & sisters are alive and are not parties to the suit) 3. The plaintiff is one of the sons of one of the daughters of the Brajamohan and Padmabati. He has filed the suit against defendant no. 1 and her three sons and daughter with the following prayers: "Prayer On the view of above facts and circumstances the Hon'ble Court may pleased to admit the plaintiff suit and passed relief/relief’s as follows:- i. Permanently injected (sic) to the defendants for not construct (sic) any permanent structure or boundary wall over the schedule "A" of property till the partition amongst the co-sharer. ii. Declare the plaintiff is the coparcener to get the share by way of partition of the schedule-"A" of property. iii. Any other relief/s may grant for the better interest of natural justice." 4. The followings are the relevant paras of the plaint for the claim of the relief’s and those are quoted herein-below for better appreciation:- "1. That, the plaintiff is filed the suit in his personal capacity as the devolution of interest to his late mother property and the defendant No. 1 who is another coparceners of the schedule-"A" of property implicated in this suit. The defendant No. 1 has three son who are the defendant No. 1, 2 & 3 and defendant No. 4 is the daughter of the defendant No. 1, all are mingled together with the malafide intention to grab the entire property and progress the construction work over the property forcible. 2. The defendant No. 1 has three son who are the defendant No. 1, 2 & 3 and defendant No. 4 is the daughter of the defendant No. 1, all are mingled together with the malafide intention to grab the entire property and progress the construction work over the property forcible. 2. That, the below mentioned schedule-"A" of property is belongs to Hindu joint family property stood recorded in joint namely Bidytu Prava Panigrahi, Parsanna Kumari Devi, Krushnpriya Panda, Mitabhasini Panigraphi & Prabhati Mishra, D/O Braja Mohan Praharaj (One Part) & Jagata Mohan Praharaj S/O Dinabandhu Praharaj (2nd Part), Bijaya Ram Praharaj, Natarananda Praharaj, Jaya Krushna Praharaj S/O Balakrushna Praharaj (3rd Part). 3. That, as per last settlement R.O.R. the above mentioned persons are the recorded tenant published by the settlement authority. The suit schedule plot No. 1939 measuring an area AC.0.117 dec. bearing Khata No. 583, under the Mouza Bhubaneswar is the separate plot located in last settlement map. 4. That, the plaintiff is the son of late Prabhati Mishra, who is the one Co-sharer of suit schedule property. The suit schedule property is lying vacant due to disturbances between the co-sharer. But in the mean time on dated 31/05/2012 the another co-sharer namely Bidyut Prabha Panigrahi (defendant No.1) and her daughter defendant No.4 and her three sons defendant No.2, 3 *4 all are mingled at suit schedule property and excavate the bore well over the said land and gathered the sand, stone and raw materials in order to construct the house. 5. xx xx xx xx xx 6. That, the plaintiff claims before defendants of his legitimate claim of her mother property but unfortunately the defendant No. 2 to 3 became very rowdy in nature and his sister defendant No. 4 having covetous eye over the property, hence they are determined to grab the same at any cost even at the cost of bloodshed, murder etc. 7. That, the plaintiff is the law abiding persons hence he want to settled the matter in amicable but the defendant No. 2 to 4 reluctant for same, for which plaintiff filed a proceeding U/S-144(2) of Cr.P.C. before the learned Court of Executive Magistrate Cum A.D.C.P., Bhubaneswar, bearing C.M.C. No. 700/2012, against the present defendants on dated 04/06/2012. 7. That, the plaintiff is the law abiding persons hence he want to settled the matter in amicable but the defendant No. 2 to 4 reluctant for same, for which plaintiff filed a proceeding U/S-144(2) of Cr.P.C. before the learned Court of Executive Magistrate Cum A.D.C.P., Bhubaneswar, bearing C.M.C. No. 700/2012, against the present defendants on dated 04/06/2012. The learned Executive Magistrate also adjudicate the matter and passed the final verdict on dated 25/08/2012, on the view of verdict the plaintiff has debarred and deprived his legitimate rights over the schedule of property by the present defendants. During the course of adjudication of C.M.C. No. 700/2012 the defendant No. 1 and 4 only contested the case and shown two gift deed regarding to this schedule of property which is totally fraudulent and illegal in the eye of law. On the virtue of the said two gift deeds the defendant No. 4 in her best effort manipulate the records of right which is totally illegal and void. The said two gift deeds executed in a joint ancestral Hindu family property without the knowledge and consent by the other co-sharer. It is a very big question the gift deed can executed in a joint ancestral property in which the numbers of recorded tenants in record of right, so it is adjudicated at the time trial by this Hon'ble court. 8. That, now-a-days the defendant No. 2 to 4 are engaged mason and laborers with help some local hooligans in order to construct the house and boundary wall in which the plaintiff always demands for amicable partition amongst the co-sharer but defendants discarded the same. 9. That, the last cause of action arose on dated 19/09/2012 at time about 9 A.M. when the group of hired goondas reached at the schedule of property in order occupy the land forcible at any cost and construct the boundary wall over the schedule of property for which the plaintiff is constrained to file this case by seeking appropriate relief. The Hon'ble Court has perfect territorial jurisdiction to adjudicate this matter. The Schedule-"A" of property situated within the territorial jurisdiction of this Hon'ble to adjudicate the matter." 5. The Hon'ble Court has perfect territorial jurisdiction to adjudicate this matter. The Schedule-"A" of property situated within the territorial jurisdiction of this Hon'ble to adjudicate the matter." 5. The above noted plaint averments being traversed, the defendants have stated the facts as under:- "(a) The suit property along with other properties were acquired by Brajamohan Praharaj and his wife Padmabati Devi by an amicable arrangement in the family in 1942, there was specification of share and accordingly in the record of right of the year 1962, plot No. 3532/4179 with an area of Ac 0.110 decimals was recorded in the name of Brajamohan Praharaj having one ana four pahi, Padmabati Devi having ten anas and eight pahi along with Jagatmohan Praharaj having two annas eight pahi, Bijayaram Praharaj, Jayakrishna Praharaj having one anna four pahi and Netrananda Praharaj having one anna four pahi. Be it stated here that Brajamohan Praharaj died on 28.05.1956 and recording of his name in the R.O.R. published in the year 1962 was erroneous. After death of Brajamohan his wife Padmabati Devi as the only successor became owner of her husband's interest also. (b) By virtue of deed of gift, Padmabati Devi along with other property gifted Ac.0.079 decimals out of suit plot to the defendant No. 1 (one). Said gift deed was duly executed and registered on 29.09.73 as deed No. 5520. The deed was voluntarily executed by the donor and was scribed as per her instruction and was attested according to law. On the same day for other properties having total area of Ac.2.041 decimals, said Padmabati Devi executed a gift deed in favour her another daughter Prabhati Mishra, W/o-. Somanath Mishra, the mother of the plaintiff. That deed was numbered as deed No. 5521. The donees as per both the deeds accepted the gifts and exercised their ownership accordingly. On that day i.e. on 29.09.1973, Padmabati Praharaj executed a WILL in respect of a residential property at Puri in favour of Prabhati Mishra, the mother of the plaintiff and after death of Padmabati Devi @ Praharaj, Prabhati Mishra applied for letters of administration in Misc. Case No. 13/5 of 1975 before Subordinate Judge, Puri. On that day i.e. on 29.09.1973, Padmabati Praharaj executed a WILL in respect of a residential property at Puri in favour of Prabhati Mishra, the mother of the plaintiff and after death of Padmabati Devi @ Praharaj, Prabhati Mishra applied for letters of administration in Misc. Case No. 13/5 of 1975 before Subordinate Judge, Puri. (c) Plaintiff's mother having accepted the benefit under two registered documents as stated above, she was aware and C9nscious about the gift of the portion of the suit property which Padmabati had as her own and also as successor of Brajamohan Praharaj. The mother of the plaintiff had no interest in the suit property. Therefore, when the defendant No.1 (one) applied for mutation of her name, her other sisters including plaintiff's mother did not raise any objection to the claim of mutation for which the mutation was legally allowed which-otherwise proves the consent of others and the interest of this defendant. (d) Be it said here that erroneously the names of other sisters of defendant No. 1 (one) was entered in the record of right for the suit property, published in 1991. For deletion of their names, settlement Revision No. 721 of 1991 was filed before Commissioner, Land Records and as per other of the Commissioner, the suo motu mutation case No. 7059 of 2002 was started by the Tahasildar, Bhubaneswar and after compliance of provisions of law the mutation was allowed. After mutation, the defendant No. 1 (one) was possessing the eastern side measuring Ac 0.082 of the suit plot by amicable arrangement and consent of other recorded owners towards her interest in the suit plot as a done. Though in her gift deed the area gifted was mentioned as Ac 0.079 dec., in the later settlement record the total area of the plot was found to be Ac 0.117 decimals instead of Ac 0.110 decimals and so recorded in the record of right. Thus the entitlement of defendant No. 1 (one) was Ac 0.82 decimals in reference to her share noting in the sabik ROR. (e) That by virtue of a deed of gift No. 1224, dtd. 28.01.2010, defendant No. 1 (one) voluntarily gifted her possessed area of Ac 0.82 decimals from the suit plot to this defendant. The deed was prepared as per the instruction of the defendant No. 1 who after understanding the contents of the gift deed, signed the deed. (e) That by virtue of a deed of gift No. 1224, dtd. 28.01.2010, defendant No. 1 (one) voluntarily gifted her possessed area of Ac 0.82 decimals from the suit plot to this defendant. The deed was prepared as per the instruction of the defendant No. 1 who after understanding the contents of the gift deed, signed the deed. Possession of specific portion of the plot was given to this defendant and accepting the gift this defendant continued in possession. Later she also filed mutation case No. 5212 of 2010 before the Tahasil Authority. The Revenue Inspector being empowered passed order on 10.05.2010 for mutation of the name of this defendant. The order was confirmed by the Tahasildar, Bhubaneswar. The name of this defendant was recorded in respect of mutated plot No. 1939/4136 for an area of Ac 0.082 in Khata No. 1556/1459. For her recorded property, this defendant obtained approved plain from Bhubaneswar Development Authority by intimation dated 31.01.2012 and started raising construction. The plaintiff has no interest in the suit property as her mother had also no interest over any portion of the suit plot or this defendant's mutated plot. Taking advantage of the erroneous recording in the settlement published ROR which has been rightly corrected, the plaintiff has filed this suit by suppressing the subsequent developments which are within the knowledge of the plaintiff. As such the plaintiff is guilty of suppression of fact. That defendant No. 1 (one) as the done from Padmabati Devi the owner and only successor of her husband (Brajamohan Praharaj) was the lawful owner in possession and by virtue of gift in favour of this defendant she is the only owner in possession of the gifted property." 6. In the said suit, the respondent no. 1 filed a petition under Order 39, Rules 1 and 2 of the Code for an interim injunction restraining the defendants from constructing any permanent structure and from changing the nature and character of Schedule 'A' property and putting boundary wall over the same till disposal of the suit. The order of maintenance of status quo by the parties having been passed by the trial court, this appeal has come to be filed. 7. Heard the learned counsel for the parties. Perused the impugned order and copies of other relevant documents placed in course of hearing. 8. The order of maintenance of status quo by the parties having been passed by the trial court, this appeal has come to be filed. 7. Heard the learned counsel for the parties. Perused the impugned order and copies of other relevant documents placed in course of hearing. 8. It reveals that Padmabati, the maternal grand-mother of plaintiff and defendant nos. 2 to 5 and mother of defendant no.1 has executed registered deed of gift in favour of daughter Bidyutprava, the defendant no.1 who is the mother of the defendant no. 5 on 29.9.1973 in respect of land in suit measuring Ac.0.079 decimals. On the same day, she has executed another deed of gift in respect of land measuring Ac.2.041 decimals in favour of mother of the plaintiff. There has been execution of a Will on that very day in favour of the mother of the plaintiff and that has already been probated. On that very day, she has executed three other registered gift deeds in favour of other three daughters. On the basis of the aforesaid, the defendant no.1 had filed one revision for deletion of the names of others from the concerned Record of Rights and that has been allowed. She later on has gifted the land in the year 1973 in favour of the defendant no.5 (appellant). 9. The suit is not one for partition and it under no circumstance can be construed as such since neither the necessary parties have been impleaded in the suit nor the other properties have been described. The plaintiff has filed this suit only in respect of one item of property of Padmabati leaving other items and suppressing the true state of affairs in relation to all the properties. In such factual situation as narrated above, which reveals from the documents, there being no prayer for declaration that the gift deed of the year 1973 executed by defendant no.1 in favour of the defendant no. 5 to be invalid and till it is not so decided to be having no legal force in a properly constituted suit, simply on the face of the pleadings laid in the plaint it cannot be said that the plaintiff has a prima facie case for the purpose of grant of temporary injunction as prayed for. 5 to be invalid and till it is not so decided to be having no legal force in a properly constituted suit, simply on the face of the pleadings laid in the plaint it cannot be said that the plaintiff has a prima facie case for the purpose of grant of temporary injunction as prayed for. The balance of convenience, for the aforesaid reason also does not lean in his favour and rather it can be said to be leaving in favour of the appellant as her case is that after the gift of the land in her favour by her mother by execution of the deed and its registration having accepted the same, she is putting up the construction with permission bf the BDO which has also progressed to a considerable extent spending substantial amount. For the above discussion, the plaintiff's suffering from irreparable loss in the event of denial of grant of temporary injunction or refusal to pass an order of status quo in respect of the suit land does not arise. Therefore, the order of the trial court is found to be vulnerable and as such is liable to be set aside. 10. In the wake of aforesaid, the appeal is allowed without cost. The order impugned in this appeal is hereby set aside with a direction to the court below to conclude the trial of the suit within a period of four months to be computed from 17.8.2015 when the parties are directed to appear in the court below to receive further instruction and co-operate with the trial of the suit. It may be stated here that the observations made above in course of discussion will have no influence in the mind of trial court in deciding the suit in accordance with law. Appeal allowed with cost.