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2015 DIGILAW 519 (ORI)

Suprava Rout v. Sasmita Nayak

2015-09-01

KRUSHNA RAM MOHAPATRA

body2015
ORDER : Krushna Ram Mohapatra, J. 1. Heard Mr. R. Behera, learned counsel for the appellant and Mr. S.K. Pradhan, learned counsel for respondents 1 to 4. Tough respondent No. 5 has entered appearance through Mr. A.C. Mohanty, learned counsel and associates none appears for him when the matter is called. 2. Defendant No. 2 in C.S. No. 407 of 2010 of the Court of Civil Judge (Senior Division), 1st Court, Cuttack assails the order dated 13.08.2012 passed in I.A. No. 302 of 2010 in this appeal, wherein, learned Civil Judge directed the opposite parties therein including the present appellant not to alienate any portion of schedule 'B', 'C' and 'D' land in favour of anyone till disposal of the suit and they were further restrained from creating any encumbrance, gift or mortgage or create any 3rd party interest over the suit properties till disposal of the suit. 3. Plaintiffs filed the suit to declare the registered sale deed No. 442 dated 29.01.1992 executed by defendant No. 1 in favour of defendant No. 2 (appellant herein) as illegal, inoperative and without consideration. They also prayed for other reliefs for partition in respect of schedule 'B', 'C' and 'D' properties and for permanent injunction. During pendency of the spit, the aforesaid I.A. was filed with the following prayers: "It is therefore, prayed that this Hon'ble Court be graciously pleased to grant ad-interim order of injunction by restraining the defendant/Opp. Party No. 1 from alienating or encumbering or transferring the properties described under Schedule-B, C and D of this application in any manner whatsoever till disposal of the suit. Further this Hon'ble Court be graciously pleased to injunct the defendant/Opp. Party No. 2 from alienating and/or transferring the Schedule-C property or any portion thereof transferred by defendant/Opp. Party No. 1 in her favour vide void Sale Deed No. 442, dtd. 29.01.1992. And shall pass any other or further order as it deems fit and proper under the fitness of facts and circumstances of the case. And for this act of kindness, the petitioner plaintiffs as in duty bound shall ever pray." It appears from the above that the plaintiffs made a prayer to injunct the present appellant from alienating and/or transferring, the 'C' schedule property or any portion thereof transferred by defendant No. 1 in her favour vide sale deed in question. 4. Mr. And for this act of kindness, the petitioner plaintiffs as in duty bound shall ever pray." It appears from the above that the plaintiffs made a prayer to injunct the present appellant from alienating and/or transferring, the 'C' schedule property or any portion thereof transferred by defendant No. 1 in her favour vide sale deed in question. 4. Mr. Behera, learned counsel for the appellant at the outset, contends that he has no grievance as against schedule 'B' property. So far as schedule 'D' property is concerned, it is his contention that since no prayer is made in respect of schedule 'D' property as against the appellant the same could not have been granted. He further submits that admittedly schedule 'C' property is recorded the name of defendant No. 1/respondent No. 5, which she had purchased by virtue of registered sale deed No. 442 dated 29.01.1992 and she is in exclusive possession over the same. Subsequently, 'C' schedule property was mutated in her name. She has constructed a double storied building taking loan from Orissa Rural Housing Development Corporation and the building was constructed after taking due permission from Cuttack Development Authority, Cuttack. She is paying electricity dues, which stands in her name. She is also paying holding tax in respect of 'C' schedule property. She has absolute and exclusive right, title, interest and possession over 'C' schedule property. Learned Trial Court while considering the matter being swayed away by perusing certain documents with regard to her alleged relationship with defendant No. 1/respondent No. 5 opined that she has not come to the Court with clean hand and on that ground only her case was not appreciated. Learned Trial court has also not considered the three essential ingredients while granting relief in favour of the Plaintiffs/respondents 1 to 4. 5. Mr. Pradhan, learned counsel for the plaintiff/respondent Nos. 1 to 4, on the other hand, contends that 'C' schedule property was purchased from out of the Stridhan of the plaintiff/respondent No. 4. Defendant No. 1, who is her husband, taking advantage of their relationship prevailed over plaintiff/respondent No. 4 and managed to purchase the 'C' schedule property in his name. Thus, it is her absolute property and defendant No. 1 had no right, title or interest over the same. Thus, the sale in favour of defendant No. 2/appellant was a sham transaction and should not have been entertained at all. Thus, it is her absolute property and defendant No. 1 had no right, title or interest over the same. Thus, the sale in favour of defendant No. 2/appellant was a sham transaction and should not have been entertained at all. 6. During course of argument, referring to his interim application regarding 'D' schedule property, Mr. Pradhan submits that non-inclusion of 'D' schedule property in prayer of the LA. in respect of defendant No. 2 is a typographical error. He further contends that by virtue of sale deed in question, no possession was handed over to defendant No. 2. Hence, the learned Trial Court has rightly granted the relief, which need not be interfered with. 7. To test the correctness of submission made by Mr. Pradhan, learned counsel for the respondent Nos. 1 to 4, I perused the Interim Application, which is annexed as Annexure-3 to the appeal memo. In paragraph 5 of the petition, allegation in respect of schedule 'B', 'C' and 'D' properties is made against defendant No. 1/respondent No. 5 and in paragraph-6 thereof, allegations were made against defendant No. 2 in respect of 'C' schedule property only and nowhere in the petition, the plaintiffs have made any allegations against defendant No. 2 in respect of 'D' schedule property. Hence, the contention of Mr. Pradhan that non-inclusion of 'D' schedule property in the prayer portion as against defendant No. 2/appellant to be a typographical error is not correct. 8. Hence, this Court is of the view that no prayer for injunction as against defendant No. 2 in respect of 'D' schedule property could have been granted by the learned Trial Court. Learned Trial curt has discussed in detail the history of acquiring 'C' schedule property by defendant No. 2 which goes to establish that defendant No. 2/appellant is in possession over the same and there is no document to show that plaintiffs/respondent Nos. 1 to 4 ever possessed the 'C' schedule property. Moreover, the property is exclusively recorded in the name of defendant No. 2. Learned Trial Court while dealing with the contention of the Plaintiffs has rightly opined that the question as to whether the property ('C' schedule) was purchased by defendant No. 1 from out of Stridhan of plaintiff No. 4 can be decided at the time of hearing of the suit. 9. Learned Trial Court while dealing with the contention of the Plaintiffs has rightly opined that the question as to whether the property ('C' schedule) was purchased by defendant No. 1 from out of Stridhan of plaintiff No. 4 can be decided at the time of hearing of the suit. 9. At this stage, it can safely be concluded that prima facie defendant No. 2 has right, title, interest and possession over 'C' schedule property. It appears from the impugned order that the learned Trial Court has not discussed any ingredients required for granting a relief of injunction while adjudicating the matter. He has only observed that defendant No. 2 has suppressed the material facts with regard to her relationship with defendant No. 1 and has not come to the Court with clean hand. No doubt, injunction is relief of equity and the person who comes to seek relief of equity must come to Court with clean hand. In the instant case, it is not the defendant No. 2, but the plaintiffs have filed petition under Order 39 Rules 1 and 2, CPC and defendant No. 2 has only given reply to the contentions made in the injunction application. It is also submitted by Mr. Behera that the relationship, if any, between the defendant Nos. 1 and 2 are not relevant for the purpose of consideration of the injunction petition, which appears to be correct. Further, learned Trial Court while granting the order of injunction should have discussed about the ingredients for grant of relief sought for, which is conspicuously absent in the impugned order, except a finding with regard to prima facie case. In that view of the matter, I have no hesitation to set aside the impugned order so far as it relates to schedule 'C' and 'D' properties in respect of defendant No. 2/appellant. Accordingly, the appeal is allowed modifying the impugned order to the effect that injunction as against defendant No. 2 in respect of schedule 'C' and 'D' properties is set aside confirming rest portion of the impugned order, but in the circumstances, no order as to costs.