Partly allowed

Asim Patel v. Akhaya Patel

Orissa HC24 Apr 2023CMP/80/2023

Case brief

AI extract

What is this about?

The High Court of Orissa set aside interim injunction orders in a partition/possession suit filed by opposite parties when the land was recorded in the government's name. The court observed that since the petitioner had started construction and undertook to deliver vacant possession if the main suit failed, restraining him enured to no one's benefit.

What did the court decide?

Impugned orders under Annexures-1 and 2 set aside; interim injunction of injunctions vacated.

Asim Patel Vs Akhaya Patel — Property and Title | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 80 OF 2023

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Asim Patel

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…. Petitioner

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Mr. Amit Prasad Bose, Advocate

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-versus-

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Akhaya Patel and others

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…. Opp. Parties

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Mr. Byomokesh Sahoo, Advocate (For Opp. Party Nos.3 to 6)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

24.04.2023

This matter is taken up through hybrid mode.

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Order dated 2^nd January, 2023 (Annexure-1) passed by learned District Judge, Sundargarh in F.A.O. No.39 of 2021 is under challenge in this CMP, whereby dismissing the appeal, order dated 24^th December, 2021 (Annexure-2) passed by learned Senior Civil Judge, Sundargarh in I.A. No.01 of 2021 (arising out of C.S. No.216 of 2020), has been confirmed.

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Mr. Bose, learned counsel for the Petitioner submits that C.S. No.216 of 2020 has been filed for declaration of right, title, interest and recovery of possession as well as for permanent injunction of the suit land. It is submitted by learned counsel for the Petitioner that the land stood recorded in the name of the Government, which was leased out in favour of Defendant No.18, namely, Kumarmani Deuria. Due to his legal necessity, said Kumarmani Deuria-Defendant No.18 sold out the suit land i.e., Plot No.991/4145 to an extent of Ac.0.80 decimals under Khata No.287/321 situated in Mouza Bhedabahal under Sundargarh Tahasil in the district of Sundargarh to the Petitioner vide

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// 2 //

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Registered Sale Deed in the year, 2014 and delivered possession. After purchase, the Defendant No.20-Petitioner mutated the land in his name in Mutation Case No.807 of 2016 and started construction of his residential house. At that stage, the PlaintiffsOpposite Parties No.1 to 6 raised objection and filed the suit for the aforesaid relief. Along with the plaint, the Petitioner also filed I.A. No.1 of 2021 with a prayer to restrain the Defendants including the Petitioner from entering upon the suit land. Learned trial Court vide order dated 24^th December, 2021 directed as under:

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“The Interim Application of the Petitioners be and the same is allowed of on contest against the opposite parties nos.1 to 3 and 5 and ex parte against the opposite party no.4 but in the circumstances, without cost. The opposite parties are hereby injuncted from undertaking any construction over the interim application schedule land, until disposal of the suit.”

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Since the Petitioner had started construction over the suit land by the time the order of injunction was passed, he assailed the order under Annexure-1 in F.A.O. No. 39 of 2021, which has also been dismissed. Hence, this CMP has been filed.

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Mr. Bose, learned counsel for the Petitioner submits that on perusal of the plaint annexed to the CMP as Annexure-3. It reveals that the Plaintiffs claimed right, title and interest over the suit property, which was recorded in the name of the Government. They also prayed for a direction to the Tahasildar, Sundargarh to correct the R.O.R. of Plot No.990 showing its area to be Ac.1.20 decimals in place of Ac.0.080 decimals. It is not in dispute that the suit land stood recorded in the name of the Government and leased out in favour of Defendant No.18, namely, Kumarmani Deuria, who for his legal necessity alienated the property in

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favour of Defendant No.20 (present Petitioner) by virtue of Registered Sale Deed and delivered possession. Mutation R.O.R. also stands in the name of the Petitioner. It is also not disputed that by the time, the interim application was entertained, the Petitioner had started construction over the suit land. It is the submission of Mr. Bose, learned counsel that the Petitioner will not claim any equity on the construction made over the suit property, if he loses in the suit. He also submits that in the event, the Plaintiffs succeed in the suit, vacant possession of the suit property will be delivered to them by demolishing the structure. Although such plea was taken before learned trial Court as well as learned Appellate Court, but they without considering the same has passed the impugned orders. Hence, he prays for setting aside the impugned orders under Annexures-1 and 2.

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Mr. Sahoo, learned counsel for the Plaintiffs-Opposite Party Nos.3 to 6 submits that the land in question has been wrongly recorded in the name of the Government, taking advantage of which Defendant No.18 got it leased out in his favour and subsequently sold it to the present Petitioner. Though the order of injunction was passed against five Defendants, but only Defendant No.20 preferred appeal and has filed this CMP. It is his submission that both learned trial Court as well as learned appellate Court has committed no error in holding that if the construction is allowed to be made, it will disturb the equity and will be difficult to execute the decree, if the Plaintiffs succeed in the suit. He, therefore, prays for dismissal of the CMP.

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Taking into consideration the submissions made by learned counsel for the parties and on perusal of the record, it appears that the suit land stands recorded in the name of the

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Government and was leased out in favour of the Defendant No.18, Kumarmani Deuria, who in term sold it to the Petitioner by virtue of a Registered Sale Deed in the year, 2014. The mutation R.O.R. also stands in the name of the Petitioner. It is also not disputed that by the time the petition for temporary injunction (I.A. No.1 of 2021) was taken for consideration, the Petitioner had already started construction over it. It is submitted by Mr. Bose, learned counsel for the Petitioner that the Petitioner will not claim any equity over the construction made. He also undertakes to deliver vacant possession to the Plaintiffs-Opposite Parties, if they succeed in the suit. In such view of the matter, restraining the Petitioner from making further construction over the suit land will enure to the benefit of none. This aspect was neither considered by learned trial Court nor by learned appellate Court.

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In view of the above, the impugned orders under Annexures-1 and 2 are set aside and the interim order of injunction stands vacated. This CMP is disposed of with an observation that the Petitioner shall not claim any equity on the construction made over suit property and will deliver vacant possession of the same in the event, the Plaintiffs succeed in the suit.

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

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(K.R. Mohapatra) Judge

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Asim Patel v. Akhaya Patel

Case brief

What is this about?

What did the court decide?

Asim Patel v. Akhaya Patel

Case brief

What is this about?

What did the court decide?

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