Baishnaba Charan Sahoo And Others vs Jyotiranjan Sahoo And Others
2023 Latest Caselaw 1612 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP No. 365 of 2022
                 Baishnaba Charan Sahoo and others    ....      Petitioners
                                        Mr. Sidhartha Mishra-1, Advocate
                                            -versus-
                 Jyotiranjan Sahoo and others           ....   Opp. Parties
                                         Mr. Bibekananda Bhuyan, Advocate

                            CORAM:
                            JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             21.02.2023


 4.         1.      This matter is taken up through Hybrid mode.

2. Judgment dated 3rd January, 2020 (Annexure-6) passed by learned Additional District Judge, Nimapara in FAO No.21/2/30 of 2018/2015/2013 is under challenge in this CMP, whereby the order dated 2nd March, 2013 (Annexure-5) passed by learned Civil Judge (Senior Division), Nimapara in IA No.31 of 2008 (arising out of CS No.27 of 2008) has been reversed and the order of injunction passed by the learned trial Court has been vacated.

3. Mr. Mishra, learned counsel for the Petitioners submits that CS No.27 of 2008 has been filed by one Chanduri Bewa for declaration of right, title, interest, permanent injunction and also to declare the registered sale deed No. 160 dated 7th February, 2008 as void and invalid and not binding on the Plaintiff. It has further been prayed to declare the order dated 8th February, 2008 passed by the Assistant Consolidation Officer in Objection Case

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No.10860 of 2006 and order dated 9th December, 2005 passed in Objection Case Nos.10138 of 2005 are void, invalid and without jurisdiction. Plaintiff Chanduri Bewa had also filed IA No.31 of 2008 under Order XXXIX Rules 1 and 2 CPC, but during pendency of the said petition, she died and has been substituted by her legal heirs, namely, the present Petitioners. Learned trial Court, vide order dated 2nd March, 2013 (Annexure-5), allowed the said petition under Order XXXIX Rules 1 and 2 CPC restraining the Opposite Parties to the said petition from entering upon the suit land and interfering with the possession of the Petitioners. Being aggrieved, Opposite Parties preferred FAO No.21/2/30 of 2018/2015/2013 under Order XLIII Rule 1(r) CPC assailing the order under Annexure-5. Learned appellate Court, allowed the Appeal, vide order under Annexure-6 and reversed the order passed under Annexure-5. Hence, this CMP has been filed assailing the said order.

4. It is submitted by Mr. Mishra, learned counsel for the Petitioners that the suit property was purchased exclusively in the name of Chanduri Bewa, but subsequently impersonating her, a registered partition deed No.2671 dated 19th December, 1998 was executed in which the suit land fell to the share of Dharmananda, who executed the registered sale deed in favour of Opposite Party No.1-Jyotiranjan Sahoo. It is his case that since the property was purchased in the name of said Chanduri Bewa, it could not have been blended with the stock of the joint family. Since the partition deed itself has been obtained by impersonating said Chanduri Bewa, Dharmananda could not have executed the registered sale deed in favour of Opposite

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Party No.1. The property recorded in the name of a female Hindu is her exclusive property and if any person claims otherwise, burden is on him to prove the same. Learned trial Court observing that the issue of blending of the property purchased in the name of Chanduri Bewa to the joint family nucleus can be decided in the suit, passed the order of injunction. Learned appellate Court failed to appreciate the same. Learned appellate Court heavily relying upon the partition deed and the sale deed executed by Petitioner No.1-Baishnaba Charan Sahoo, pursuant to such partition deed, allowed the appeal and reversed the order of injunction passed by learned trial Court. Hence, the same is not sustainable in the eye of law and is liable to be set aside.

5. While issuing notice in the matter, this Court, vide order dated 4th May, 2022, has taken note of the fact that the order of injunction is continuing since 2nd March, 2013 and passed interim order directing the parties to maintain status quo over the suit property. The said order is continuing till today. As such, Mr. Mishra learned counsel submitted that since the interim order is continuing for last 10 years, hence, the interim order passed by this Court should continue till disposal of the suit with a direction to dispose of the suit at an early date.

6. Mr. Bhuyan, learned counsel for Opposite Party Nos. 1 to 4 vehemently objects to the above submission. It is his case that the plea taken in the plaint is no more available to be adjudicated in the suit because of change in the circumstances, as in the meantime, Chanduri Bewa has died. Thus, her property has devolved upon her legal heirs including late Dharmananda

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Sahoo. It is further submitted that during consolidation operation, the Consolidation authorities taking note of the registered partition deed directed to record the suit land in the name of Dharmananda Sahoo. Although the order of the Assistant Consolidation Officer is under challenge in the suit, but the same has not yet been set aside by any competent Court of law. Thus, the order passed by the Assistant Consolidation Officer still holds the field. It is his submission that plea taken in the suit should have been raised before the ACO, who was competent to adjudicate the same and that having not been done, the issue is no more available to be raised in the suit. He further submits that acting upon the said partition deed, Petitioner No.1 has also alienated the property from his share. Thus, the partition pursuant to the registered partition deed has already been acted upon. As such, learned appellate Court has not committed any error in vacating the order of injunction. It is his submission that although the interim order is continuing for almost ten years, but that does not entitle the Opposite Parties to the relief, if they are entitled for the same under law.

7. Taking into consideration the rival contentions of the parties, this Court finds that the property was exclusively purchased in the name of Chanduri Bewa. Admittedly, Petitioners are her legal heirs including Dharmananda Sahoo. It is also not disputed that a registered partition deed bearing No.2671 dated 19th December, 1998 has been executed by the co-sharers. Although LTI of Chanduri Bewa is available in the said registered deed of partition, but that is seriously disputed by said Chanduri Bewa herself in the plaint. Pursuant to the

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partition deed, different Objection Cases were filed before the Assistant Consolidation Officer and orders have been passed to record the land separately in terms of the said partition deed. It is, however, contended that said Chanduri Bewa had not participated in the consolidation operation. She has also challenged the validity of the order passed and competency of the ACO in the suit itself. Since the suit is pending adjudication, it will not be proper for this Court to record any finding to that effect. However, it appears that there is registered partition deed and pursuant to the same Petitioner No.1 has alienated some property from his share. Thus, prima facie it appears that the partition deed has already acted upon. It further appears that Chanduri Bewa has expired in the meantime and has been substituted by her legal heirs, namely, the Petitioners. After her death, right over the property purchased in her name has already been devolved upon her legal heirs including Dharmananda.

7.1 Since the registered partition deed has already been acted upon even by the Petitioner No.1 himself and the Opposite Party No.1 is a bona fide purchaser from one of the legal heirs of Chanduri Bewa, he should not be prevented from enjoying the suit property, more particularly when the ACO has directed to record the land purchased by Jyoti Ranjan in the name of Dharmananda. Continuance of interim order for last 10 years does not entitle the Petitioners to claim for further continuance till disposal of the suit, when they are not otherwise entitled to the same under law. Accordingly, this Court finds that learned appellate Court has committed no error in reversing the order

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passed by learned trial Court. Hence, the CMP being devoid of any merit stands dismissed.

8. Interim order dated 4th May, 2022 passed in IA No.423 of 2022 stands vacated.

9. Since the suit is of the year 2008, learned trial Court shall make an endevavour to dispose of the suit in accordance with law at an early date. Parties are directed to co-operate with learned trial Court for early disposal of the suit.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy