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2019 DIGILAW 179 (ORI)

Arun Kumar Maediratta v. Anil Kumar Maediratta

2019-03-06

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition assails the judgment dated 28.3.2018 passed by the learned Additional District Judge, Titilagarh in F.A.O. No.2 of 2016. By the said judgment, learned appellate court dismissed the appeal and confirmed the order dated 31.5.2016 passed by the learned Civil Judge (Sr.Division), Titilagarh in I.A.No.6 of 2016 whereby and whereunder defendants 1, 2 and 4 have been restrained from alienating the suit property and raising any construction over the suit property till disposal of the suit. 2. Plaintiffs-Opposite parties 1 and 2 instituted Civil Suit No.77 of 2015 before the learned Civil Judge (Sr.Division), Titilagarh for declaration that schedule 'A' and 'B' property as the ancestral property of the plaintiffs and defendants, judgments and decrees passed in Civil Suit No.16 of 2005 and in the counter claim in Civil Suit No.16 of 2005 are null and void, the deed of acknowledgement of partition is illegal and void, the will dated 7.4.1999 is void ab initio and perpetual injunction. 3. Pursuant to issuance of summons, defendants 1 and 2 entered appearance and filed their respective written statements denying the assertions made in the plaint. 4. The plaintiffs filed an application under Order 39 Rule 1 CPC to injunct defendants 1, 2 & 4 from alienating the suit property and raising any construction. The defendants filed their respective objections to the same. By order dated 31.5.2016, learned trial court allowed the application and restrained defendants 1, 2 and 4 from alienating the suit property and raising any construction over the suit property till disposal of the suit. Defendant no.2 filed F.A.O.No.2 of 2016 before the learned Additional District Judge, Titilagarh. Learned appellate court dismissed the appeal, but granted liberty to the plaintiffs that in case of urgent necessity, any of the parties may apply the learned court below for permission to sell a portion of the suit schedule property, except that alienated in favour of defendant-respondent no.4 or any other person by way of already executed registered sale-deeds. 5. Mr. Ganeswar Rath, learned Senior Advocate duly assisted by Mr. Trilochan Nanda, learned Advocate for the petitioner submits that in the deed of acknowledgement of partition, shares have been allotted in favour of all the co-sharers. The same has been acted upon. The plaintiffs sold a portion of the land allotted in their favour. C.S.No.16 of 2005 was filed by defendant no.2-petitioner. The suit was decreed. Trilochan Nanda, learned Advocate for the petitioner submits that in the deed of acknowledgement of partition, shares have been allotted in favour of all the co-sharers. The same has been acted upon. The plaintiffs sold a portion of the land allotted in their favour. C.S.No.16 of 2005 was filed by defendant no.2-petitioner. The suit was decreed. The decree has attained finality. Thereafter, the present suit has been instituted by the plaintiffs-opposite parties 1 and 2. He files an affidavit in the Court. Referring to the affidavit, he submits that marriage of the daughter of the petitioner has been fixed. The petitioner is in urgent need of money. The petitioner may be permitted to sale a piece of land, which fell to his share in the deed of acknowledgment of partition dated 26.12.1998 and the decree passed in C.S.No.16 of 2005. He further submits that the petitioner intends to sale an area of 2925 sq.ft. i.e., Ac.0.068 dec. out of total area of 21,450 sq.ft or Ac.0.510 dec of plot no.2397 of holding no.476 of the current settlement of mouza-TitilagarhKa, which corresponds to plot no.2397/5368 of khata no.852/1184. The market value of the property will be more than Rs.15,00,000/-. The petitioner has contacted the purchasers for the sale of the land in order to meet the expenses of his daughter's marriage. The petitioner as well as the co-sharers has sold the property to other persons. He further submits that the plaintiffs-opposite parties 1 & 2 do not have prima facie case, the balance of convenience does not tilt in their favour and, moreover, they will not suffer irreparable loss and injury. He places reliance on the decisions in the case of Kale and others v. Dy. Director of Consolidation and others, (1976) 3 SCC 119 , Nandakishore Nayak and others v. State of Orissa and others, (2003) CrLR 331, Smt. Laxmi Dei and another v. Shyam Sundar Hans, (2005) Supp OrissaLR 346, Khaliza Begum v. K. Srinivas Rao, (2006) 2 CLR 456 and Mandali Ranganna and others v. T. Ramachandra and others, (2008) 11 SCC 1 . 6. Countering the submissions, Mr. U.K. Samal, learned counsel for opposite parties 1 and 2 submits that by practicing fraud, the plaintiffs have obtained the decree in C.S.No.16 of 2005. The deed of acknowledgment of partition has not been acted upon. In the suit, prayer has been made to set aside the decree. 6. Countering the submissions, Mr. U.K. Samal, learned counsel for opposite parties 1 and 2 submits that by practicing fraud, the plaintiffs have obtained the decree in C.S.No.16 of 2005. The deed of acknowledgment of partition has not been acted upon. In the suit, prayer has been made to set aside the decree. Both the courts below, on analysis of the evidence on record, came to hold that the plaintiffs have a strong prima facie case, the balance of convenience tilts in their favour and, moreover, they will suffer irreparable loss and injury. 7. Mr. Nayak, learned counsel for opposite party no.3 supports the submissions of Mr. G. Rath, learned Senior Advocate for the petitioner. 8. In course of hearing, a query was made as to the valuation of the suit property, the petitioner intends to sale, Mr. Rath, learned Senior Advocate for the petitioner submits that current market value of the suit property would be Rs.16,00,000/-. Mr. Samal, learned counsel for opposite parties 1 and 2 submits that opposite parties 1 and 2 are ready and willing to purchase the suit property with the price fixed by the petitioner. Mr. Rath, learned Senior Advocate submits that it is not possible to sale the property to opposite parties 1 and 2. 9. From the aforesaid narration of the facts, it is evident that the petitioner does not want to sale the property for his daughter's marriage. 10. In Dr. Buddhi Kota Subbarao Vs. K. Parasaran and others, (1996) AIR SC 2687, the apex Court held that no litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions. 11. The petitioner has not filed an application under Order 39 Rule 4 CPC for variance of the interim order before the learned trial court. The appellate court has observed that in case of urgent necessity, any of the parties may file an appropriate application in the court below to sale the property. Before this Court a submission was made to sale the property, but ultimately the petitioner declined to accept the offer made by opposite parties 1 and 2. The appellate court has observed that in case of urgent necessity, any of the parties may file an appropriate application in the court below to sale the property. Before this Court a submission was made to sale the property, but ultimately the petitioner declined to accept the offer made by opposite parties 1 and 2. Both the courts concurrently held that the plaintiffs have prima facie chance of success in the suit, the balance of convenience tilts heavily in their favour and, moreover, they will suffer irreparable loss and injury, if the defendants sale the property and make any construction over the suit land. There is no perversity in the said findings. 12. Dealing with the scope of Article 227 of the Constitution, the apex Court in Municipal Corporation of Delhi vs. Sh. Jai Singh and Others, (2010) AIR(SCW) 5968 held thus:- "xxx xxx xxx Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. It cannot be exercised like a 'bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice." (Emphasis laid) 13. In Kale, the apex Court held that though there is a family arrangement, the court will lean in favour of family arrangements. On technical or trivial grounds, the same cannot be overlooked. Allegation must be pleaded and proved by clear and cogent reason. There is no proposition of law as laid down by the apex Court. The bona fides and propriety of a family arrangement has to be judged by the circumstances prevailing at the time when such settlement was made. 14. In Nandakishore Nayak, this Court held that temporary injunction shall not be granted when the effect is to dispossess a party in possession of the property on the assertion of a valid right. 15. In Smt. Laxmi Dei, principles for grant of injunction have been discussed. 16. In Khaliza Begum, this Court held that in case of existence of prior family settlement, prayer for partition and prayer for declaration of the sale deed as null and void cannot be allowed. 17. In Mandali Ranganna, the apex Court held that while considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto i.e., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. There is no quarrel over the proposition of law. 18. As held above, the petitioner has declined to accept the offer made by opposite parties 1 and 2. 19. There is no quarrel over the proposition of law. 18. As held above, the petitioner has declined to accept the offer made by opposite parties 1 and 2. 19. In the result, the petition is dismissed. No costs.