Orissa High Court

Shree Shree Radha Krushna vs Kamala Nayak And Others .... Opposite ... on 13 February, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CMP No.188 of 2025
            Shree Shree Radha Krushna                  ....             Petitioners
            Raghunathjew Thakur, Garapur,
            Kendrapara and another
                                                     Mr. G. Mishra, Sr. Advocate

                                          -Versus-

            Kamala Nayak and others                    ....       Opposite parties
                                                       Mr. P.K. Biswal, Advocate
                       CORAM:
                       MR. JUSTICE R.K. PATTANAIK

                                         ORDER

13.02.2025 Order No.

01. 1. Heard, Mr. Mishra, learned Senior Advocate for the petitioners and Mr. Biswal, learned counsel for opposite party No.4.

2. No notices are issued to the other opposite parties as the matter is disposed of at the stage of admission.

3. Instant petition is filed by the petitioners challenging the impugned judgment dated 13th January, 2025 passed in connection with FAO No.32 of 2024 under Annexure-1 by learned District Judge, Kendrapara and also to set aside the order dated 21st May, 2024 in I.A. No.58 of 2024 arising out of C.S. No.114 of 2011 as at Annexure-2 on the grounds stated therein.

4. Mr. Mishra, learned Senior Advocate for the petitioners would submit that a half constructed house stands over the suit land, construction of which, is to be completed but in view of the order under Annexure-1 in FAO No.32 of 2024, the same is not taking place. It is further submitted by Mr. Mishra, learned Senior

Advocate that the petitioners are not to claim any equity over the constructed house situate over the suit schedule property as its construction has reached up to the roof level but ignoring the same, learned court below declined raising any such construction over the same, which is to substantially prejudice to the petitioners and not the opposite parties and in particular, opposite party Nos.1 to 4, hence, therefore, the impugned decision as per Annexures-1 and 2 are liable to be modified to the aforesaid extent allowing such construction to be concluded. In support of such contention, Mr. Mishra, learned Senior Advocate relies on the following decisions, such as, Smt. Padmini Sekhar Deo and others Vrs. Pankajini Thakur and another (1999) 88 CLT 297; Narendra Kante Vrs. Anuradha Kante and others (2010) 2 SCC 77; and K.M. Pratap Vrs. K.M. Gourish and another (2017) 11 SCC 103 to contend that the petitioners would be subjected to immense inconvenience and irreparable loss as possession of the suit property is with them duly acknowledged by learned court below while disposing of FAO No.32 of 2024 and furthermore, when no equity would be claimed over the constructed house, if it is allowed to be accomplished. The submission is that considering the ratio decided the case laws (supra), the petitioners should be allowed to complete the construction of the house without claiming any enquiry in future.

5. Mr. Biswal, learned counsel for opposite party No.4, on the other hand, justifies the impugned order i.e. Annexure-2 confirmed in FAO No.32 of 2024 vide Annexure-1 with the submission that the gift deed is under challenge and since the claim of the petitioners is rested on the same, any such construction, if allowed over the suit property, as has been pleaded for, it would

severely affect the interest of the opposite parties, hence, therefore, the same has rightly been denied. In fact, it is submitted by Mr. Biswal, learned counsel that there is no such house standing over the suit property, hence, there is no question of any such completion of construction as it is claimed by the petitioners and to protect and preserve the subject till disposal of the suit, the impugned order under Annexure-1 I FAO No.32 of 2024 is not to be disturbed.

6. The question is, whether, any such house is standing over the suit property or not, which is challenged by opposite party No.4. Upon reading of the impugned order i.e. Annexure-2 and Annexure-1 in FAO No.32 of 2024, the Court finds that a conclusion has been reached at about its existence with the finding that the suit property stands mutated in the name of petitioner No.1 through petitioner No.2 and the same is by virtue of a gift. Deed and with such a finding, learned court below passed the impugned judgment under Annexure-1 denying any such construction to take place over the suit property. If such is the finding by learned court below, it has to be prima facie held that the alleged construction which has been made in respect of the house up roof level is standing over the suit property. Of course, the plea of opposite party No.4 is subject to final verification during trial. For the present, the Court is inclined to accept the finding of learned lower appellate court as per Annexure-1 to hold that the constructed house is over the suit property.

7. The next consideration is, whether, any such permission should be granted to the petitioners to conclude the construction which is opposed by the opposite parties and opposite party No.4, in particular. At this juncture, the Court is inclined to refer to the

relevant extracts of the decisions relied upon by Mr. Mishra, learned Senior Advocate for the petitioners. In Smt. Padmini Sekhar Deo (supra), this Court had the occasion to consider a similar case and reached at a conclusion that any such restrainment from taking up construction completing a house half built would cause irreparable loss to the party who has put up the same and hence, concluded that the same should be allowed to take place. In case of Narendra Kante, the Apex Court held and observed that while considering the question of convenience and inconvenience, irreparable loss and injury, the Court has to keep in mind that in the event, any such interim order is passed preventing development of a portion of the property acquired by a party, such party would suffer immensely as he cannot utilize it till disposal of the suit which could take several years and thereafter, at the appellate stages. In fact, in K.M. Pratap (supra), the Supreme Court allowed such construction to be concluded in the interest of parties imposing conditions, such as, not to create a 3rd party interest over the construction and the party claiming is not to demand equity. In so far as, the gift deed is concerned, it is allegedly in favour of the petitioners and legality of the same is under question in the suit. However, as earlier stated, there is a finding regarding the construction having been put by the petitioners over the schedule property and it has been in their possession with the mutation RoR issued in favour of opposite party No.1. Considering the same and as the petitioners assured to not claim equity over the construction, keeping of the view the ratio decided and discussed herein above, the Court recording the objection of Mr. Biswal, learned counsel for opposite party No.4 is of the humble view that such construction is to be allowed, otherwise, the petitioners would be subjected to substantial loss

and not the opposite parties. With the above view expressed, the Court is of the conclusion that the impugned order under Annexure-1 in FAO No.32 of 2024 is required to be modified to the extent as aforesaid.

8. Accordingly, it is ordered.

9. In the result, the petition stands disposed of. As a necessary corollary, the impugned judgment under Annexure-1 in FAO No.32 of 2024 by learned District Judge, Kendrapara is modified to the extent as indicated above allowing the petitioners to conclude the construction of the half built house situate over the suit property, title over which, shall be subject to outcome in the suit. In the circumstance, however, there is no order as to costs.

10. Urgent copy of this order be issued as per rules.

(R.K.Pattanaik) Judge

Rojina

Designation: Junior Stenographer