Orissa High Court
Ajit Kumar Patel And Others vs Raj Kishore Patel And Others .... ... on 24 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.457 of 2025
Ajit Kumar Patel and others .... Petitioners
Mr. S.S. Pradhan, Advocate
-Versus-
Raj Kishore Patel and others .... Opposite Parties
Mr. T. Nanda, Advocate
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
Order 24.04.2025
No.
04. 1. This matter is taken up through virtual mode.
2. Heard Mr. Pradhan, learned counsel for the petitioners and
Mr. Nanda, learned counsel for the opposite parties.
3. Instant petition is filed by the petitioners challenging the
impugned order dated 5th March, 2025 passed in FAO No.12 of
2024 by learned District Judge, Balangir, whereby, the order of
status quo of learned Senior Civil Judge, Balangir directed in CS
No.364 of 2024 was overturned on the grounds stated therein.
4. A copy of the plaint is at Annexure-1 and the same is
perused. The opposite parties, who filed WS is at Annexure-2 and
the same is gone through as well. Mr. Pradhan, learned counsel for
the petitioners submits that taking advantage of the record of right
in respect of schedule-'B' property recorded in the name of the
predecessor-in-interest of the opposite parties, an application under
Order 39 Rule 1 and 2 CPC vide IA No.37 of 2024 was filed and
upon considering the objection file therein as per Annexure-4,
learned Civil Judge (Senior Division), Balangir passed the order of
status quo dated 26th November, 2024 i.e. Annexure-5 and the
same was challenged by the opposite parties in FAO No.12 of 2024
and it has led to the passing of the impugned order i.e. Annexure-7.
The further submission is that the learned court below though found
existence of a prima facie case in favour of the petitioners but was
not inclined to confirm the order of status quo as was directed vide
Annexure-5 and ignoring the note of possession of the petitioners in
the record of right, the order of status quo was overturned, hence,
the impugned order i.e. Annexure-7 is liable to be interfered with.
5. Mr. Nanda, learned counsel for the opposite parties denies
the claim of the possession in respect of scheduled-'B' property as
the same stands recorded in the name of the grand-father of the
opposite parties, the fact, which weighed the mind of learned court
below and hence, set aside the order of status quo i.e. Annexure-5.
The further submission is that there was an earlier partition in CS
No.208 of 2021, on the basis of which, the opposite parties
possessed schedule-'B' property. In reply and response to the above,
Mr. Pradhan, learned counsel for the petitioner would submit that
such decree was managed by the opposite parties in absence of the
petitioners, hence, fraud has been employed and hence, any such
decree on account of fraud is a nullity in the eye of law and
according to law, the same can be challenged at any time.
6. In course of hearing, Mr. Pradhan, learned counsel for the
petitioners cited the following decisions, such as, S.P. Chengalvaraya
Naidu Vrs. Jagannath 1994 (I) SCC 1 and Prahallad Pradhan and
another and Vrs. Sonu Kumar and others 2019 (10) SCC 259 to
contend that fraud vitiates the entire proceeding and is therefore,
not to be given effect to and accepted for that matter and that
apart, a record of right does not create or extinguish title in favour
of or against the parties. The further contention is that revenue
record does not confer title and therefore, even though schedule-'B'
property is recorded in the name of the grant-father of the opposite
parties, in view of the possession revealed therefrom in favour of
the petitioners, the order of status quo should have been
maintained by learned court below.
7. In reply to the above, Mr. Nanda, learned counsel for the
opposite parties cited a decision in Ramchandra Barik and others
Vrs. Parsuram Barik 2024 (I) CLR 1195 and Mangalu Kudei (dead)
and others Vrs. Ramchandra Kudei 2024 CRL 647 to claim that the
Bhogra land was settled with the grant-father of the opposite parties
and hence, therefore, lease cannot be challenged at the behest of
the petitioners.
8. Considering the submissions as above and the plea that
schedule-'B' property is claimed to be Bhogra land and settled in the
name of predecessor-in-interest of the opposite parties which is to
be examined in course of hearing in the suit but having regard to
the fact that forceful possession is recorded in the RoR with the
petitioners, the fact which has not been taken cognizance of by
learned court below while passing the judgment vide Annexure-7
though with a conclusion that a prima facie case is made out, the
Court, without expressing anything on merits of rival claims, is of
the view that as large chunk of land is claimed to be in possession
by the petitioners, status quo should be directed in respect thereof
pending disposal of the suit. In other words, the Court is of the view
that the impugned decision by order dated 5th March, 2025 in FAO
No.12 of 2024 is required to be modified restoring the order of
status quo passed in IA No.37 of 2024, however, with a direction
for early hearing and disposal of the suit. Accordingly, it is directed.
9. In the result, the CMP stands allowed. As a necessary
corollary, the impugned order as at Annexure-7 in FAO No.12 of
2024 of learned District Judge, Balangir is hereby modified with a
direction for the parties to maintain status quo in respect of the
schedule-'B' property till disposal of the suit. It is further directed
that the learned Senior Civil Judge, Balangir shall take up hearing of
the suit in CS No.364 of 2024 to ensure disposal of the same at the
earliest preferably within a period of four months from the date of
receipt of a copy of this order. It is observed that the parties are to
co-operate the learned court below, which is not to entertain
unnecessary adjournments in view of the direction as aforesaid. In
the circumstances, however, there is no order as to costs.
10. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
TUDU
