Md. Iftar Khan vs Durmatun @ Turmatun @ Harmatun
2023 Latest Caselaw 14039 Ori

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 10-Nov-2023 10:33:07




                                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                       CMP NO.700 OF 2023
                                  MD. Iftar Khan                                 ....        Petitioner
                                                                          Mr. J.K. Mishra (2), Advocate

                                                       -versus-
                                  Durmatun @ Turmatun @ Harmatun                 ....       Opp. Party
                                  @ Nisha Bibi

                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

             Order No.                                 09.11.2023
              04.            1.           This matter is taken up through hybrid mode.
                             2.           Heard.

3. Judgment dated 27th January, 2023 (Annexure-5) passed by learned District Judge, Balasore in FAO No.51 of 2022 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 20th August, 2022 (Annexure-3) passed by learned Senior Civil Judge, Balasore in IA No.32 of 2022 (arising out of CS No.69/90 of 2022) directing the parties to maintain status quo over the suit property.

4. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed by the Opposite Party for partition. The property originally stood recorded in the name of Abdul Khalik in MS Plot No.230. It is the case of the Opposite Party that out of love and affection, said Abdul Khalik gifted Ac.0.03 decimals of land in his favour and he is in exclusive possession of the same by mutating the land and correcting the ROR. The Plaintiff is an imposter and styling herself as one of the daughters of Abdul Khalik has filed the suit. Learned trial Court, observing that the Plaintiff being the daughter of Abdul Khalik has a share, directed

Signature Not Verified Digitally Signed // 2 // Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 10:33:07

the parties to maintain status quo over the suit property. Learned appellate Court reiterated the same and held that learned trial Court has committed no error in directing the parties to maintain status quo over the suit property.

5. It is submitted by Mr. Mishra, learned counsel for the Petitioner that he being the exclusive owner of the suit property is making construction of a house with the financial assistance under 'Indira Awas Yojana'. This aspect was not taken into consideration either by learned appellate Court or by learned trial Court, while adjudicating the matter. Hence, he prays for setting aside the impugned order and to dismiss the application under Order XXXIX Rules 1 and 2 CPC filed by the Plaintiff-Opposite Party.

6. On perusal of the case record, it appears that the Petitioner in his objection to the petition under Order XXXIX Rules 1 and 2 CPC stated that Abdul Khalik has gifted the area of Ac.0.03 decimals out of the suit property in his name and the ROR has been corrected accordingly.

7. There is no reference to the plot number and Khata number of the corrected ROR in the objection filed by the Opposite Party to the petition under Order XXXIX Rules 1 and 2 CPC.

8. In course of hearing, Mr. Mishra, learned counsel for the Petitioner requested the Court to accept the copy of the ROR and consider the matter accordingly.

9. Since there is no reference to the Khatian number and other description of land in the objection, it would not be proper to accept the copy of the ROR at this stage to consider the same.

10. It is submitted by Mr. Mishra, learned counsel for the Petitioner that a house is being constructed by the Petitioner taking

Signature Not Verified Digitally Signed // 3 // Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 10:33:07

assistance under the 'Indira Awas Yojana'. It is also submitted that house is at the completion stage. No such averment finds place either in the objection filed by the Petitioner or there is any material available to that effect. Such an objection appears to have not been raised before either of the Courts. Since the property originally belong to Abdul Khalik, and a suit for partition is pending, learned trial Court has committed no error in directing the parties to maintain status quo over the suit property. Learned appellate Court has also committed no error in dismissing the appeal.

11. As such, the CMP being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin