Orissa High Court
Anil Mishra vs Ganeswar Mishra And Others on 22 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 127 of 2023
Anil Mishra .... Petitioner
Mr. Rabindranath Prusty, Advocate
-versus-
Ganeswar Mishra and others .... Opp. Parties
Mr. Tusar Kumar Mishra, Advocate
(For Opposite Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.03.2023
3. 1. This matter is taken up through Hybrid mode.
2. Judgment dated 18th January, 2023 (Annexure-9) passed
by learned Additional District Judge, Bonai in FAO No.2 of
2022 is under challenge in this CMP, whereby setting aside the
order dated 20th August, 2022 passed by learned Senior Civil
Judge, Bonai in IA No.8 of 2022 (arising out of CS No.14 of
2022), learned appellate Court restrained the Petitioner from
making any further construction over the suit land till disposal
of the suit. It was further directed that the prayer for grant of
mandatory injunction for removal of construction made by
Respondent-Petitioner over the suit land would be considered by
learned trial Court at the time of disposal of the suit.
3. Mr. Prusty, learned counsel for the Petitioner submits
that the suit for partition has been filed by the Opposite Party
No.1. Along with plaint, the Opposite Party No.1 filed IA No.8
of 2022 under Order XXXIX Rules 1 and 2 CPC. The said
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application was dismissed vide order dated 20th August, 2022 of
learned Civil Judge (Senior Division), Bonai. Assailing the
same, the Opposite Party No.1 preferred FAO No.2 of 2022 and
the impugned order has been passed.
3.1 It is his submission that findings of learned appellate
Court to the effect that there is material on record to show that
the Defendant-Petitioner has made construction up to plinth
level is not correct. Civil construction of the house is complete;
only finishing work is awaited. Thus, passing of order of
injunction will not enure to the benefit of none. Hence, he prays
for setting aside the impugned order and to permit the Petitioner
to complete the finishing work of the house.
4. Mr. Mishra, learned counsel for the Plaintiff-Opposite
Party No.1 submits that both learned trial Court as well as
learned appellate Court held that construction of the house has
been made upto plinth level. No material has been placed before
this Court as to when the construction of civil work was
completed. Photographs submitted by Mr. Prusty, learned
counsel for the Petitioner-Respondent does not relate to the suit
plot. Hence, learned counsel for the Plaintiff-Opposite Party
No.1 submits that the suit plot having not been partitioned as yet
by metes and bound, the Petitioner should not be allowed to
make further construction over the same. He, therefore, prays
for dismissal of the CMP.
5. Taking into consideration the rival contentions of
learned counsel for the parties and on perusal of record, it
appears that learned appellate Court on scrutiny of materials
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placed before it, came to the conclusion that construction was
made upto plinth level. As submitted by Mr. Mishra, learned
counsel for contesting Opposite Party No.1 that there is no
material on record as to when construction of the house in
question was completed. Mr. Prusty, learned counsel for the
Petitioner, however, produced few photographs showing
completion of civil works of the house in question, but
Mr. Mishra, learned counsel for the Opposite Party No.1 stoutly
refutes the same submitting that it does not relate to the suit
land. There is no material to show that the Petitioner has in fact
completed construction over the suit plot. Be that as it may, if
the Petitioner has completed the construction, the impugned
order has become academic. Although the learned counsel for
the Petitioner submits that a house was existing over the suit
land and as it became inhabitable, the Petitioner by demolishing
the same, started new construction. The said contention was
rejected by learned appellate Court stating that there is no
material to show that there was a house existing over the suit
land.
6. Taking into consideration the discussions made above,
this Court finds that if construction of the house has already
been completed as submitted by learned counsel for the
Petitioner, then order restraining the Petitioner from making
further construction has become academic. However, the suit
land has not yet been partitioned by metes and bound and share
of the parties is yet to be determined. At this juncture, a party to
the suit should not be allowed to make construction over the suit
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land without consent of other co-sharer(s). In that view of the
matter, I do not find any infirmity in the impugned order.
7. Accordingly, the CMP being devoid of any merit stands
dismissed.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
