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2016 DIGILAW 785 (ORI)

Jharana Tarai v. Nirupama Samal

2016-09-12

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the order dated 7.1.2015 passed by the learned Civil Judge (Sr.Divn.), Kujang in I.A. No. 85 of 2014 in the matter of an application under Order 39 Rule 1 and 2 of the CPC directing the parties to maintain status quo with respect to the property purchased by the appellant from the purchaser of the said land who had purchased it from the father of the respondents. 2. Facts necessary in the purpose of this appeal are stated hereunder:- In order to avoid confusion and for better understanding, the parties hereinafter have been referred to as they have been arraigned in the suit. The respondents as the plaintiffs have filed the suit i.e. C.S. No. 94 of 2014 for partition claiming 1/5th share for each of them over the property described in the schedule of the plaint which in total comprises of land measuring Ac.4.58 decimals. A prayer remains for declaration of sale deed dated 3.7.2002 executed by defendant no. 2 in favour of defendant no. 3 and the sale deed in turn executed by defendant no. 3 in favour of defendant no. 4 as void and for permanent injunction restraining defendant no. 4 from interfering in the possession of the land covered under the said sale deed as described in schedule-B of the plaint which forms a part of the total suit land. The suit having been filed in the year 2014, later the plaintiffs filed the petition for issuance of temporary injunction against defendant no. 4 so as to restrain her from making any construction over the land that she claims to have purchased. 3. Heard the learned counsel for the parties at length. Perused the plaint, written statement, petition for temporary injunction with objection as also the documents filed by the parties in the trial court. I have also gone through the order impugned in this appeal. 4. The plaintiffs’ case is that one Mani Tarai is their common ancestor and defendant no. 2 being his sole heir as his only son succeeded to the properties of Mani. The plaintiffs are the three daughters of defendant no. 2 and defendant no. 1 is the son of defendant no. 2. So these three married daughters have now filed the suit for partition of the properties said to have been inherited by their father, the defendant no. The plaintiffs are the three daughters of defendant no. 2 and defendant no. 1 is the son of defendant no. 2. So these three married daughters have now filed the suit for partition of the properties said to have been inherited by their father, the defendant no. 2 from his father Mani Tarai. They claim to be entitled to 1/5th share each over the same. This defendant no. 4 is a purchaser of a portion of land from defendant no. 3 who had purchased it from defendant no. 2, the father of the plaintiffs. It is said that the property is ancestral undivided joint family property standing recorded in the name of defendant no. 2 after the death of his father Mani and there has never been any partition in metes and bounds. It is alleged that the defendant no. 3 being the second wife of defendant no. 1 i.e. brother of the plaintiffs fraudulently managed to snatch away a registered sale deed in her favour from defendant no. 2 and then she has ultimately transferred to defendant no. 2. The sales are said to be without consideration and delivery of possession. Alleging that the purchaser defendant no. 4 is trying to put up some construction over the purchased land, the petition has been filed for temporary injunction against her from entering upon the said land and making any construction over it. 5. The move has been resisted by the defendant no. 4 stating to have been in possession of the suit land by virtue of said purchase and to have also mutated the said land in her favour. 6. The trial court discussing the facts and circumstances of the case instead of passing an order of temporary injunction as prayed for has directed the parties to maintain status quo in so far as the said land is concerned. The defendant no. 4 thus being aggrieved by the said order has impugned the same in this appeal. 7. It is the settled position of law that in a suit where temporary injunction is prayed for, the party coming up with such prayer has to show that there remains the prima facie case; that the balance of convenience leans in favour of grant of temporary injunction and that irreparable loss would be sustained in the event the order of temporary injunction as prayed for is not passed. 8. 8. The suit is one for partition at the instance of the plaintiffs who are the married daughters of defendant no.2. The parties are governed by Mitakhara School of Hindu Law as admitted and are governed by Hindu Succession Act. The plaint averments with regard to the devolution of the property run as under:- “2. That the land described in schedule ‘A’ of the plaint is their ancestral property which stands recorded in the name of Rajib Lochan Tarai (deft.no.2) as per the hal R.O.R. published in the year 1996 after the death of his father. 4. That the common ancestor Mani Tarai died leaving behind his only son Rajib Tarai (deft.no.2) and Rajib Tarai has one son Manas Ranjan (deft.no.1) and three daughters namely Nirupama (plff.no.1), Rasmiprava (plff.no.2), Anupama (plff.no.3). 5. That it is worthwhile to submit here that though the schedule ‘A’ land recorded in the name of defendant no.2 but it being the joint undivided Hindu family property so also the ancestral property till yet is under the joint possession of the plaintiffs and defendant no. 1 and 2. An such joint possession of the parties is within the knowledge of all including the defendants no. 3 and 4 and no where their possession had been interfered by anybody else till yet.” A plain and simple reading being given to the above, it is thus prima facie seen that the property having come to be succeeded by Rajib, the defendant no. 2 from his father, Mani, the same has been as such recorded in the name of Rajib, the defendant no.2. The same is claimed to be the ancestral property. It has not been pleaded that Mani had got it from his father or ancestor. In that situation accepting the plaint case, the prima facie view stands that Rajib, the defendant no. 2 succeeded the property as the sole heir of Mani being his son, class-I heir and that is not the copercenery property in the hands of Mani who cannot be said to be having a right by birth over it along with his sons and daughters accepting them as such. Thus the property came to be inherited by him thus by virtue of section 8 of the Hindu Succession Act. Thus the property came to be inherited by him thus by virtue of section 8 of the Hindu Succession Act. The devolution of the said property here cannot be said to be under section 6 of the Act when also it is not stated that Mani had died leaving behind any female heir. Therefore, prima facie it is to be taken as the separate property of Rajib, the defendant no. 2 and his son and daughters would only come to have their interest over the same only after his death and have no right by birth as coparceners. 9. Next if the schedule of land is just given a look, it is found that the properties brought within the purview of the suit for partition measure Ac.4.58 decimals. The defendant no.4’s purchased land is measuring Ac.0.06 decimals under one plot. The record of right reveals that the said land is of Gharabari kisam. Although in the schedule, the kisams have not been mentioned but it is seen from the said record of right that in total there are 11 plots of land other than the land said to have been finally purchased by defendant no. 4 are of Gharabari kisam when the extent of this purchased land comes of Ac.0.06 decimals, the rest extent of that very Gharabari kisam of land comes to Ac.1.37 decimals. At the cost of repeatation it may be stated that in this case, the father who is the vendor i.e. defendant no. 2 is not coming to contest the suit and challenge the sale on any ground. He has not filed any written statement. So even for a moment, it is assumed that the suit would be preliminary decreed at the end with equitable factors being kept in view, then this Court finds absolutely no reason that the plaintiffs would in any way be inconvenienced and deprived in any manner in getting their share of land if they are found so entitled so as to be carved out keeping the very kisam of land intact being available to be finally allotted to them. The plaintiffs are married daughters and it is not their case that they are residing over the suit land over a house on it. So it is quite apparent that the land purchased by defendant no. The plaintiffs are married daughters and it is not their case that they are residing over the suit land over a house on it. So it is quite apparent that the land purchased by defendant no. 4 can get easily adjusted towards the share of said vendor even if it is not excluded from the total land holding the sale made by defendant no. 2 for the benefit of the family although admittedly he enjoys in the position of karta even assuming the claim of the plaintiffs as such. So there arises no reason to take a view that the balance of convenience leans in favour of passing an order of temporary injunction or the status quo. Nor can it be said by any stretch of imagination that the plaintiffs would suffer irreparable loss in the event their suit for partition is decreed allotting their share as claimed. The trial court appears to have lost sight of all the above facts and thus have failed to appreciate the same keeping the settled law in mind. Therefore, the order as passed is vulnerable. 10. In the result, the appeal stands allowed. The impugned order dated 7.1.2015 passed by the learned Civil Judge (Sr.Divn.), Kujang in I.A. No. 85 of 2014 is hereby set aside. However, as a measure of abundant caution, it is hereby made clear that the defendant no. 4 shall have no claim of equity whatsoever and anything done over her purchased property shall remain attached to the result of the suit and shall abide by it accordingly. Before parting, it is further made clear that whatever have been expressed and observed above are only confined to the present matter of consideration of grant of order of status quo impugned in this appeal and that will have no bearing in the mind of the trial court which shall in no way be influenced by the same while deciding the suit on its merit, in accordance with law. No order as to cost.