Banamali Sahoo Vs Rina Sahoo

Order dated 24^th July, 2023 (Annexure-6) passed by learned 1^st Additional District Judge, Bhubaneswar in FAO No.40 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned Appellate Court confirmed the order dated 27^th January, 2023 (Annexure-5) passed by learned 2^nd Additional Senior Civil Judge, Bhubaneswar in I.A. No.1 of 2021 (arising out of C.S. No.2130 of 2021) directing the parties to maintain status quo over the suit properties.

¶16

Mr. Dhal, learned counsel submits that Defendant Nos.4 and 5 are the Petitioners in this CMP. The suit has been filed by the Plaintiff-Opposite Party No.1 for partition, declaration that the sale deed executed by Defendant No.1 in favour of Defendant Nos.4 and 5 is null and void and not binding on her as well as to declare the relinquishment deed in respect of the suit

¶17

properties to be null and void and for permanent injunction. Along with the plaint, the Plaintiff-Opposite Party No.1 filed an application under Order XXXIX Rules 1 and 2 C.P.C. (IA No.1 of 2021) in respect of the suit properties with a prayer to pass an

¶18

Page 1 of 4

¶19

ad-interim order of injunction restraining the Opposite Parties from changing the nature and character of the suit properties and creating third party interest. Learned trial Court although held that balance of convenience lies in favour of both the parties, directed the parties to maintain status quo over the suit properties. The Defendant Nos.4 and 5 are only concerned with Plot No.225, Khata No.66, Chaka No.162 to an extent of Ac.0.480 decimals situated in mouza Pahal under Balianta P.S. in the district of Khurda. The Petitioners have purchased the said properties from Defendant No.1 with consent of the Plaintiff-Opposite Party No.1 as well as Defendant Nos.2 and 3. Petitioners were also delivered with possession. The aforesaid plot has already been mutated in the name of the Petitioners. Since the Petitioners have purchased the aforesaid properties for a valuable consideration, they proceeded to make construction over the suit properties. At that juncture, the suit has been filed along with interim application. Learned trial Court without considering the fact that the co-sharers to the suit properties, namely, Plaintiff and Defendant Nos.2 and 3 have consented to the sale made by Defendant No.1 in favour of Defendant Nos.4 and 5 directed the parties to maintain status quo over it as a result of which the Petitioners are suffering from irreparable loss as they have invested huge amount therein for construction of residential house thereon. It is his submission that all the joint family properties are not brought to the hutch pot as would be clear from the plaint itself. Further, learned Appellate Court without taking note of the aforesaid facts also confirmed the said order vide order under Annexure-5. Hence, this CMP has been filed.

¶20

Page 2 of 4

¶21

3.1 It is further submitted that unless the impugned orders under Annexures-5 and 6 so far as the aforesaid land is concerned are modified, the Petitioners will be highly prejudiced and will suffer irreparable loss and injury. The Plaintiff has not come to the Court with clear hands. Thus, she is not entitled to relief of equity. He, therefore, prays for setting aside the impugned orders under Annexures-5 and 6.

¶22

Mr. Rath, learned counsel for Opposite Party No.1 vehemently objects to the same. It is his submission that both the learned Courts have committed no error in passing the impugned orders under Annexures-5 and 6. Admittedly, the suit properties are joint family properties. The Defendant No.1 is only entitled to 1/4^th share of the property at Pahal. Although the Plaintiff-Opposite Party No.1 is a consenting party to the sale deed, but that does not entitle the Defendant No.1 to alienate the entire property of Pahal. In a suit for partition, the lis is to be preserved till disposal of the suit. Thus, both the Courts have committed no error in passing the impugned orders under Annexures-5 and 6.

¶23

Taking note of the submissions made by learned counsel for the parties, this Court finds that the Plaintiff and Defendant Nos.1 to 3 are co-sharers to the suit properties. Admittedly, there exists the registered deed of relinquishment by the Plaintiff and Defendant Nos.2 and 3 in favour of Defendant No.1 in respect of the suit properties. Further, the suit properties more particularly the plot situated in mouza Pahal was alienated by Defendant No.1 in favour of Defendant Nos.4 and 5 (present Petitioners) by a registered sale deed on consent of the Plaintiff as well as Defendant Nos.2 and 3. Possession of the suit properties has

¶24

Page 3 of 4

¶25

already been delivered to the Petitioners. It is also not disputed that the Petitioners have invested huge amount for construction of residential house thereon.

¶26

5.1 Learned trial Court while adjudicating the matter held that balance of convenience leans equally in favour of both the parties, but it has not discussed as to how the Plaintiff will suffer irreparable loss, if no order of injunction is granted in her favour 5.2 Admittedly, the suit property situated at mouza Pahal has been mutated in favour of Defendant Nos.4 and 5- Petitioners. Thus, in the facts and circumstances of the case, if the Defendants are prevented/restrained from enjoying the suit properties independently, they will suffer irreparable loss. This aspect was not taken into consideration by learned Courts while adjudicating the matter.

¶27

Accordingly, the impugned orders under Annexures-5 and 6 so far as it relates to the suit property, i.e., Plot No.225 under Khata No.66 (Chaka No.162) to an extent of Ac.0.480 decimals situated in mouza Pahal under Balianta P.S. in the district of Khurda, are set aside.

¶28