Dibakar Sahoo vs Haramani Sahoo
2023 Latest Caselaw 3044 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CMP No. 864 of 2022
                 Dibakar Sahoo                             ....       Petitioner
                                           Mr.Pratap Chandra Mishra, Advocate
                                            -versus-
                 Haramani Sahoo                            ....      Opp. Party

                            CORAM:
                           JUSTICE K.R. MOHAPATRA

                                         ORDER

Order No.                               10.04.2023
5.          1.      This matter is taken up through Hybrid mode.

2. Judgment and order dated 7th July, 2022 (Annexure-9) passed by learned District Judge, Jagatsinghpur in FAO No.8 of 2022 is under challenge in this CMP, whereby dismissing the appeal it confirmed the order dated 10th December, 2021 (Annexure-7) passed by learned Senior Civil Judge, Jagatsinghpur in IA No.218 of 2021 (arising out of CS No.326 of 2021) allowing an application under Order XXXIX Rules 1 and 2 CPC restraining the present Petitioner from alienating the suit property till disposal of the suit.

3. Mr. Mishra, learned counsel for the Petitioner submits that the suit property was recorded in the name of the Plaintiff/Opposite Party. She executed a Power of Attorney (POA) in favour of Defendant No.4 and by virtue of said POA Defendant No.4 sold the suit property to the present Petitioner. The Petitioner is residing over the suit property by constructing his residential house. When the land was notified to be acquired by the National Highway Authority (NHAI) for expansion of the road, the Opposite Party having a greedy eye to grab the

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compensation has filed the suit for partition and to declare the POA in favour Defendant No.4 as well as the sale deed executed in favour of the present Petitioner to be null and void. Along with the plaint, the Opposite Party filed an application under Order XXXIX Rules 1 and 2 CPC in IA No.218 of 2022 to restrain the present Petitioner from alienating the suit property and from dispossessing the Opposite Party from the suit house. Learned trial Court taking into consideration that the record of rights stands in the name of the Opposite Party, restrained the present Petitioner from alienating the suit property. Being aggrieved, the Petitioner filed the FAO, which was dismissed vide judgment dated 7th July, 2022 (Annexure-9). Hence, this CMP has been filed.

3.1 It is submitted by learned counsel for the Petitioner that the suit property has been sold in favour of the Petitioner by Defendant No.4 by virtue of the POA executed by the true owner, namely, the Plaintiff. Thus, the Petitioner should not be restrained from enjoying and dealing with the property independently. Neither the learned trial Court nor the learned appellate Court has dealt with this material aspect of the matter. Thus, the impugned orders under Annexure-9 and 7 are not sustainable and liable to be set aside.

4. Considering the submission made by learned counsel for the Petitioner and on perusal of record, it appears that although the Petitioner claims that he has purchased the suit property but could not produce any document in support of his case to the effect that the suit land has been recorded in his name. Learned counsel for the Petitioner, however, refers to the ROR under Annexure-3 series prepared in the name of the Petitioner in

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respect of the suit land. The said document was never produced before learned trial Court. On the other hand, the Plaintiff/Opposite Party produced the ROR in respect of the suit prepared in her name. Since the issue of validity of the POA allegedly executed by the Plaintiff/Opposite Party in favour of Defendant No.4 is under challenge, the Petitioner has rightly been restrained from alienating the suit property during pendency of the suit to avoid multiplicity of litigations and complicacy in deciding the suit. The ROR prepared in the name of the Plaintiff/Opposite Party clearly makes out a strong prima facie case in her favour and balance of convenience also leans in her favour. The suit property being a residential house the Plaintiff/Opposite Party will suffer irreparable loss if the suit property is alienated and the Plaintiff is dispossessed during pendency of the suit. Thus, the learned trial Court and learned appellate Court are justified in passing the impugned orders under Annexures-7 and 9 respectively.

5. Accordingly, I find no merit in the CMP and as such the same stands dismissed.

s.s.satapathy (K.R. Mohapatra) Judge