Orissa High Court
Sasmita Giri And Others vs Md. Habibur Raheman .... Opp. Party on 7 August, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Aug-2024 13:15:03
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.827 OF 2024
Sasmita Giri and others .... Petitioners
Ms. Deepali Mahapatra, Advocate
-versus-
Md. Habibur Raheman .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 07.08.2024
01. 1. This matter is taken up through hybrid mode.
2. Judgment dated 10th July, 2024 (Annexure-7) passed in
FAO No.09/15 of 2024 is under challenge in this CMP, whereby
learned 1st Additional District Judge, Puri allowed the appeal and
set aside the order dated 22nd February, 2024 (Annexure-5) passed
by learned Civil Judge, Senior Division, Puri in I.A. No.06 of
2024 (arising out of CS No.10 of 2024) in an application filed
under Order XXXIX Rules 1 and 2 CPC.
3. It is submitted by Ms. Mahapatra, learned counsel for the
Petitioners that one Basanta Kumari Bisoi, who was the
grandmother of the Petitioners and other co-sharers was the
recorded tenant in respect of the suit property. Upendra Bisoi was
the husband of said Basanta Kumari Bisoi. Both are dead since
long, leaving behind the Petitioners and other co-sharers, who are
Proforma Defendants in the suit. Out of them, Sujata Bisoi died
issueless on 29th November, 2023 and the property of said Sujata
Bisoi devolved upon the Petitioners and Profroma Defendants.
The Consolidation ROR in respect of the suit schedule 'A' land of
the interim application was also prepared in the name of Basanta
Kumari Bisoi. The property is situated in Pipili. But, the
Petitioners were staying out of Pipili. As such, they have engaged
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Aug-2024 13:15:03
a Gumasta to look after the properties. But, he having a greedy
eye, tried to misappropriate the usufructs of the suit property.
Taking advantage of such situation, the Opposite Party tried to
become close to the Petitioners and Proforma Defendants. In the
guise of executing a Power of Attorney in his favour to look after
the property, he managed to get a registered agreement for sale in
his favour. Subsequently, he managed to execute a registered sale
deed in his favour for consideration of Rs. 3,70,00,000/-. On the
basis of the sale deed, the Opposite Party tried to develop the
property. Only then, the Petitioners came to know that the
Opposite Party has managed to create a sale deed in his favour
taking advantage of simplicity of the Petitioners. As such, the
Plaintiff filed the suit (CS No.10 of 2024) seeking for a relief to
set aside the sale deed in respect of the schedule 'B' property and
for permanent injunction. Along with the plaint, the Petitioners
filed application under Order XXXIX Rules 1 and 2 CPC seeking
to restrain the Opposite Party from alienating/mortgaging the suit
schedule 'A' and 'B' properties and creating any disturbance in
the suit properties. It was also prayed inter alia to restrain the
Opposite Party from changing the nature and character of the suit
property till disposal of the suit. Learned trial Court, taking note
of the case of the Petitioners and conduct of the Opposite Party,
vide his order dated 22nd February, 2024 (Annexure-5) restrained
the Opposite Party from committing any type of mischief over the
suit property or creating any third party interest as well as
changing the nature and character of the suit property till disposal
of the suit. The Opposite Party, being aggrieved, preferred the
appeal. The appeal was subsequently transferred to the Court of
learned 1st Additional District Judge, Puri and renumbered as
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Aug-2024 13:15:03
FAO No.09/15 of 2024. Without taking into consideration the
case of the Petitioners in its proper perspective, the impugned
order under Annexure-7 has been passed. Hence, this CMP has
been filed.
4. It is submitted by Ms. Mahapatra, learned counsel for the
Petitioners that all the co-sharers of the suit property are not
signatories to the sale deed in question. The consideration money
had not passed to the Petitioners as well as other co-sharers.
Further, the Petitioners had never visited the Registrar's Office to
execute or register the sale deed. By playing fraud, the Opposite
Party managed to create an instrument in his favour. He is a
stranger to the suit property and has acquired no right, title and
interest over the suit property. It is further stated that the sale deed
in question does not contain the boundary of the suit property.
Taking advantage of the sale deed executed in his favour, the
Opposite Party is trying to develop the land and by that, the nature
and character of the suit land will be changed. Thus, the
Petitioners will suffer irreparable loss. Even if they succeed in the
suit, they will not be in a position to restore the nature and
character of the suit property. Learned trial Court, considering the
same, passed a reasoned order, but learned appellate Court on
surmises and conjectures, set aside the order passed by learned
trial Court under Annexure-5 and permitted the Opposite Party to
develop the suit schedule 'B' property, but, restrained him from
alienating the suit property and creating any third party interest
over it till disposal of the suit. It is her submission that the
Petitioners have no objection, if the Opposite Party comes over
the suit property. But, he should be restrained from changing the
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Aug-2024 13:15:03
nature and character of the suit property. Thus, she prays for
setting aside the impugned order under Annexure-7.
5. Taking note of the submission made by learned counsel for
the Petitioners and on perusal of the record, it appears that the
Petitioners along with other co-sharers namely, the Proforma
Defendants have executed a sale deed in favour of the Opposite
Party. Veracity of the sale deed can only be tested at the time of
final adjudication of the suit. But, the document, being a
registered one, attaches a presumption of correctness with it, until
it is set aside. Recital of the sale deed clearly discloses that the
Opposite Party has paid consideration amount to the Petitioners
and possession of the suit property has been delivered. Thus, in
view of such legal presumption, an order restraining the Opposite
party from developing the suit property will not be proper. Since
the sale deed has been executed in favour of the Opposite Party,
the balance of convenience leans in his favour. However, in order
to protect the lis, learned appellate Court consciously restrained
the Opposite Party from alienating any portion of the suit land or
creating any third party interest thereupon.
6. Considering the matter in its entirety, I find no infirmity in
the impugned order under Annexure-7.
7. Needless to observe that development, if any made by the
Opposite Party in the meantime, shall be subject to the result of
the suit.
8. Accordingly, this CMP, being devoid of any merit, stands
dismissed.
Issue urgent certified copy of this order on proper
application.
(K.R. Mohapatra)
Rojalin Judge
