Shree Shree Radha vs Kamala Nayak & Others .... ...
2025 Latest Caselaw 5772 Ori

Orissa High Court

Shree Shree Radha vs Kamala Nayak & Others .... ... on 23 May, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

      IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR
                       I.A. No.318 of 2025
                    (C.M.P No.188 of 2025)

        Shree   Shree    Radha ....           Petitioners
        Krushna    Raghunathjew
        Thakur & others
                        Mr. G. Mishra, Senior Advocate
                                -Versus-
        Kamala Nayak & others      .... OppositeParties
            Mr. S. Dash, Advocate (O.P. Nos.1, 2, 3 & 8)


                CORAM:
                JUSTICE R.K. PATTANAIK

                 DATE OF ORDER:23.05.2025
       1. Instant petition is filed by opposite party Nos.1 to 3
       and 8 seeking recall of the Court's order dated 13 th
       February, 2025 in CMP No.188 of 2025 and to direct
       the parties to the lis to maintain status quo over the suit
       schedule property with a further direction to the
       learned Additional Senior Civil Judge, Kendrapara to
       dispose of the suit in C.S. No.114 of 2011 at the
       earliest and within a stipulated period necessary for the
       ends of justice.



                                                      Page 1 of 12
 2. Heard Mr. Dash, learned counsel for opposite party
Nos.1 to 3 and 8 and Mr. Mishra, learned Senior
Advocate for the petitioners.

3. In fact, the petitioners filed the CMP assailing the
correctness of the impugned judgment dated 13 th
January, 2025 in F.A.O No. 32 of 2024 by learned
District Judge, Kendrapara and also to set aside the
order in I.A. No.58 of 2014 arising out of the suit in
C.S. No.114 of 2011 on the grounds stated. This Court
by order dated 13th February, 2025 disposed of the
C.M.P. modifying the impugned decision in F.A.O.
No. 32 of 2024 allowing the petitioners to conclude the
construction of the half built house situate over the suit
schedule property, title over which, shall be subject to
the result in the suit. Such disposal was at the stage of
admission in presence of opposite party No.4 without
any notices issued to opposite party Nos.1 to 3 and 8
and other opposite parties. By alleging that the source
of title claimed in favour of petitioner No.1 represented
by petitioner No.2 as a Marfatdar on the strength of a
gift deed is a fraudulent one, hence, the same is under
challenge in the suit and in such view of the matter, the
submission of Mr. Dash, learned counsel for opposite
party Nos.1 to 3 and 8 is that both the sides should be
                                            Page 2 of 12
 directed to maintain status quo in respect of the suit
schedule property, since the order in F.A.O. No. 32 of
2024 stands modified in C.M.P. No.188 of 2025, the
petitioners taking advantage of the same have
commenced construction over the case land, which
should not be permitted as the opposite parties have
advanced a rival claim and title over the same, a
question, which is to be adjudicated upon in the suit.
Mr. Dash, learned counsel submits that the decision of
the learned District Judge, Kendrapara in F.A.O. No.32
of 2024 should be restored with the order of C.M.P.
No.188 of 2025 being recalled as the same is necessary
keeping in view the interest of the parties involved.
The further contention is that the decision referred to
from the side of the petitioners in K.M. Pratap Vrs.
K.M. Gourish and another (2017) 11 SCC 103 is
inapplicable to the present set of facts and nature of
dispute inter se parties and therefore, having regard to
the fact that the construction over the suit land is to
commence in view of the order in C.M.P. No.188 of
2025, the same deserves to be recalled. A written note
of submission is filed and received by the Court,
referring to which, Mr. Dash, learned counsel would
submit that any such further construction over the suit
                                           Page 3 of 12
 land should be avoided. While advancing such an
argument, Mr. Dash, learned counsel refers to the
decision in Evans Vrs. Bartlam (1937) A.C. 473 and
of the Apex Court in Wander Limited Vrs. Antox
India Private Limited 1990 (Supp.) SCC 727 to
conclude that this Court could not have interfered with
the judgment of learned District Judge, Kendrapara in
F.A.O. No.32 of 2024 ignoring the settled principle of
law regulating grant or refusal of injunction. Two more
decisions have also been placed reliance on by Mr.
Dash, learned counsel, which are, namely, S.P.
Chengalvaraya Naidu Vrs. Jagannath (dead) and
others (1993) Supp. 3 S.C.R. 422 and State of Kerala
Vrs. Union of India (2024) 4 S.C.R 13.

4. On the other hand, Mr. Mishra, learned Senior
Advocate appearing for the petitioners submits that
there is no need for any recall of the Court's order
dated 13th February, 2025 in CMP No.188 of 2025 as
such a course of action allowing the petitioners to
conclude the construction keeping in view the decision
in K.M. Pratap (supra) is perfectly justified and in
accordance with law, since the same has been
permitted without claiming any equity over the same in
future. It is submitted that opposite party No.4 as a
                                          Page 4 of 12
 caveator contested the claim of the petitioners and the
matter was disposed of on merit. It is contended by Mr.
Mishra, learned Senior Advocate that opposite party
No.1 to 3 and 8 are similarly situated like opposite
party No.4 to challenge the claim of the petitioners on
a common ground and therefore, the order dated 13 th
February, 2025 in CMP No.188 of 2025 should not be
recalled as any such order would result in review.
Referring to a decision of the Apex Court in Mohd.
Hussain and others Vrs. Occhavlal and others
(2008) 3 SCC 233, it is further contended that the
order in the CMP neither to affect nor prejudice
opposite party Nos.1 to 3 and 8 and the petitioners
would rather suffer substantial loss, if they are not
allowed to complete the partially constructed building,
all the more when, the plea of the opposite parties shall
be subject to final verification during trial upon
receiving evidence from both the sides. The contention
is that this Court rightly, therefore, allowed the
construction to take place modifying the order in F.A.O
No.32 of 2024, hence, the same should not be recalled.

5. The Court of first instance directed the parties to
maintain status quo in respect of the suit schedule
property and it has been followed by the decision of
                                           Page 5 of 12
 the learned District Judge in F.A.O No.32 of 2024,
wherein, it has been concluded that the petitioner to be
in possession of the suit land but restrained them from
raising any construction thereon or changing, altering
its nature and character in any manner, till disposal of
the suit in C.S. No.114 of 2011, even though having
taken cognizance of the fact that the construction has
been made over the same to a considerable extent. The
bone of contention between the parties is with regard to
the registered gift deed executed in favour of petitioner
No.1, a deity represented by the Marfatdar, namely,
petitioner No.2. It is alleged by the opposite parties that
the said deed was not executed by their predecessor,
namely, Laxmi Dei. The claim of the petitioners is that
petitioner No.2 and opposite party No.2 are the
descendants of the common ancestor and as the
successor of one Jagabandhu, said Laxmi Dei allegedly
executed the gift deed dated 5th July, 1997, whereafter,
the suit land was mutated in the name of petitioner
No.1. On the other hand, the opposite parties claimed
that the vendor of petitioner No.1 is a granddaughter of
one Daitary Das. The claim is that said Laxmi Dei is
only the legal heir of late Jagabandhu, the recorded co-
owner in respect of suit Khata No.379 and she died
                                             Page 6 of 12
 unmarried in 1998. In fact, learned Court below
reached at a conclusion that the materials on record
lend support to the case of petitioners to the effect that
Laxmi Dei, who is projected as the donor of the suit
land in favour of petitioner No.1 died in the year, 1998
but still held that it would be too early to jump to any
such conclusion either way as the same requires factual
determination, which is possible at the time of
conclusion of trial and at the same time found the
alleged gift deed executed in 1997 and mutated in the
name of petitioner No.1. Though the deed is claimed
by the opposite parties to have been executed through a
fictitious person, it is also concluded by learned Court
below that such a claim about a fraudulent gift deed to
have been managed does not appeal to conscience for
reason that had there been any such intent, petitioner
No.2 would have recorded the suit land and settled it
with him instead of petitioner No.1, but as an abundant
caution, also held that the dispute needs determination
of facts in course of hearing of the suit concluding that
the petitioners to be in physical possession of the same.
Under such circumstances, having regard to the nature
of dispute, which revolves around the alleged gift deed
executed in favour of petitioner No.1 claims to be
                                            Page 7 of 12
 genuine and denied by the opposite parties alleging it
to be a fraudulent one and in view of the fact that
substantial construction having already taken place in
the meantime and it has been carried out by petitioner
No.2 as the Marfatdar of the deity, the Court reached at
a conclusion that further construction should be
allowed and title over which is to be determined at the
end with a rider that the petitioners shall not claim
equity over the same later on due to the fact that the
loss would be extensive for the petitioners and not to
the other side, whose claim over the suit land would be
depending on the final result in the suit on the question
of title.

6. The decision in K.M. Pratap (supra) is sought to be
distinguished by Mr. Dash, learned counsel for
opposite party Nos.1 to 3 and 8. No doubt, the suit
therein was for partition and shares of the respective
parties had not been demarcated and construction of a
structure over the disputed property was allowed to be
carried out at the risk of the party making it but with a
condition that no third party interest shall be created
over the same with such other conditions including the
one that if ultimately the property does not fall in the
share of the respondents, no equity in respect of any

such construction shall be claimed by them and instead shall remove the entire construction at their own cost. This Court is not inclined to vary the decision and to substitute the order of status quo for the reason that the RoR stands in the name of petitioner No.1 and the construction has been undertaken over the suit land at the instance of petitioner No.2 being the Marfatdar and as it is revealed from the order in F.A.O. No.32 of 2024, such construction to have progressed to a considerable extent. Having regard to the fact that the gift deed is of the year, 1997 and the same to be a registered one purportedly executed in favour of petitioner No.1 by the donor, namely, Laxmi Dei, whose line of succession and status is in question and in the meantime, the suit land being in the possession of the petitioners and them having made the construction, which has reached almost up to the roof level of the ground floor, at this juncture, any such order of status quo is certainly to prejudice them and not the opposite parties. The inconvenience would be more for the petitioners than any of the opposite parties if the construction is stopped with an order of status quo. Not only that the damage and loss would be substantial for the petitioners, who are taking up the

constructions at their own peril, fully knowing the imposed condition that they shall not claim equity over such construction in future.

7. The essential ingredients of Order 39 Rules 1 and 2 CPC, such as, a prima facie case, balance of convenience and irreparable loss and injury are to be duly taken cognizance of, while considering a plea for injunction. In view of the gift deed in favour of petitioner No.1 and possession, as has been found by learned Courts below in F.A.O. No.32 of 2024, a prima facie case is in favour of the petitioners and for the fact that petitioner No.1 to be the owner of the suit land having been issued with the mutation RoR. Furthermore, the inconvenience would be more for the petitioners, if they are prevented from making construction besides the loss and damage, in case status quo is allowed to remain. Though the decision in Evans (supra) is referred to by Mr. Dash, learned counsel for opposite party Nos.1 to 2 and 8, there is no quarrel over the legal position with regard to the ratio decided therein that a Court in appeal is not to lightly interfere with the discretion of an inferior Court, unless such exercise of discretion is grossly erroneous. In the present case, the Trial Court directed the parties to

maintain status quo and it was modified by learned District Judge, Kendrapara in F.A.O. No. 32 of 2024 with a restriction vis-à-vis any such construction to be taken up over the suit land. If learned Court below reached at a conclusion that the construction of the suit land is to a considerable extent and the petitioners do have a prima facie case to make such construction, the question is, whether, it was justified to prevent them from raising the construction with a conclusion that it would change the nature and character of the subject involved. Law is rather well settled that any such construction, if it has already undertaken and progressed extensively, the same should be allowed to complete pending decision in the suit as the party making it having invested is likely to suffer immensely besides the pecuniary loss and damage on account of any such order of injunction.

8. Considering the likely prejudice to be caused to a party, the Apex Court in K.M. Pratap (Supra) in a suit for partition allowed the construction to be completed with certain restrictions imposed like not to create 3rd party interest and to use it without express permission of the Court etc. In the present set of facts and though the title of the suit land is claimed by the opposite

parties denying any such gift deed to have been executed in favour of petitioner No.1, which is of the year,1997 and over the suit land, there is already a construction having progressed to a considerable extent and the same has not been denied by any of the opposite parties, rather, supported by a photograph produced by Mr. Dash, learned counsel for opposite party Nos.1 to 3 and 8 in course of hearing, the Court, regard being had to the settled position of law with reference to the citations relied upon, is of the humble view that the order in CMP No.188 of 2025 is not required to be recalled.

9. Accordingly, it is ordered

10. In the result, the I.A. stands dismissed.

(R.K. Pattanaik) Judge

Balaram