Dismissed¶87

Bhagabati Tarai v. Kalpana Tarai

Orissa HC22 Jan 2026CMP/1273/2022

Case brief

AI extract

What is this about?

Article 227 supervisory jurisdiction — non-interference with concurrent findings of trial court and first appellate court granting temporary injunction (Order 39 Rules 1 & 2 read with Section 151 CPC; appeal under Order 43 Rule 1(r) CPC); rival purchasers of Schedule “C” suit properties at Kujanga; prior sale deed (14.03.2001) prevails over later R.S.D. (22.04.2006) per Section 48, T.P. Act, 1882; probate of Will in Probate Misc. Case No.24/2001 noted as under challenge; CMP dismissed on contest; citations relied on: (1977) 3 SCC 515, (2005) 10 SCC 249, (2003) 6 SCC 675, (2001) 8 SCC 97.

What did the court decide?

No relief to the petitioner; the CMP is dismissed on contest. The learned Senior Civil Judge, Kujanga is directed to dispose of C.S. No.84/2022 pending before him as expeditiously as possible. ¶87

Bhagabati Tarai Vs Kalpana Tarai — Writ and Judicial Review | Orissa HC (2026)

What the court decided

AI extract

Outcome

No relief to the petitioner; the CMP is dismissed on contest. The learned Senior Civil Judge, Kujanga is directed to dispose of C.S. No.84/2022 pending before him as expeditiously as possible.

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Issue for consideration

Whether the findings arrived at by the two Courts below (learned Trial Court in I.A. No.66 of 2022 and learned First Appellate Court in F.A.O. No.25 of 2022, arising out of C.S. No.84 of 2022) are interferable in this CMP under Article 227 of the Constitution of India, 1950 exercising its supervisory jurisdiction.

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Court's answer

The impugned order and judgment of the two courts below do not suffer from any error apparent on the face of the proceedings, nor are they based on clear ignorance or utter disregard of the provisions of law.

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Ratio / Principle

In view of the principles enunciated by the Apex Court in the relied-upon decisions, interference by this Court under Article 227 with the impugned order and judgment dated 20.07.2022 and 31.10.2022 is not warranted, and the CMP cannot be allowed.

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Key takeaways

As per Section 48 of the T.P. Act, 1882, a prior sale prevails over a subsequent sale even if the confirmation of the prior sale was after the subsequent sale; both courts below having acted on the basis of the earlier sale deed in favour of the opposite party's vendor, no ground for supervisory interference was made out.ratio¶71
It is settled law that the High Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, ought not to interfere with the findings arrived at by the two Courts below.ratio¶72

Detailed headnote1 paragraphs

Orissa High Court (Ananda Chandra Behera, J.), CMP No.1273 of 2022 under Article 227 of the Constitution of India — dismissed on contest. The petitioner (defendant No.1 in C.S. No.84/2022), claiming under R.S.D. No.733 dated 22.04.2006, challenged the temporary injunction granted against her by the learned Senior Civil Judge, Kujanga on 20.07.2022 in I.A. No.66/2022 (Order 39, Rule 1 & 2 read with Section 151 CPC) and affirmed by the learned Addl. District Judge, Kujanga on 31.10.2022 in F.A.O. No.25/2022 (Order 43, Rule 1(r) CPC), in favour of the plaintiff-opposite party who purchased under the earlier sale deed No.731 dated 14.03.2001. Holding: as per Section 48 of the T.P. Act, 1882 a prior sale prevails over a subsequent sale; the High Court in exercise of supervisory jurisdiction under Article 227 ought not interfere with the concurrent findings of the two courts below, there being no error apparent on the face of the proceedings and no clear ignorance or utter disregard of the provisions of law (relying on S.P. Deshmukh (1977) 3 SCC 515; Kesharlal H. Pardeshi (2005) 10 SCC 249; Surya Dev Rai (2003) 6 SCC 675; M/s. Estralla Rubber (2001) 8 SCC 97). CMP dismissed; learned Senior Civil Judge, Kujanga directed to dispose of C.S. No.84/2022 as expeditiously as possible.

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ORISSA HIGH COURT : CUTTACK

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CMP No.1273 of 2022

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An application under Article 227 of the Constitution of India.

Bhagabati Tarai

… Petitioner.

-VERSUS-

Kalpana Tarai

… Opposite Party .

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Counsel appeared for the parties:

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For the Petitioner : Mr. S.K. Dash, Senior Advocate Along with Ms. P. Mohanty, Advocate.

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For the Opposite Party : Mr. S. Mohanty, Advocate. (For the Opp. Party)

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE ANANDA CHANDRA BEHERA

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Date of Hearing : 12.01.2026 :: Date of Judgment :22.01.2026

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CIV. Misc. Petition No.1273 of 2022

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Page 1 of 14

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JUDGMENT

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ANANDA CHANDRA BEHERA, J.—

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1. This Civil Misc. Petition under article 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the impugned order dated 20.07.2022 (Annexure-4) passed in I.A. No.66/2022 by the learned Senior Civil Judge, Kujanga and the impugned order dated 31.10.2022 (Annexure-5) passed in F.A.O. No.25 of 2022 by the learned Addl. District Judge, Kujanga.

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2. The factual backgrounds of this Civil Misc. Petition, which promoted the petitioner for filing of the same is that, the Opp. Party (Kalpana Tarai) being the sole plaintiff filed a suit vide C.S. No.84/2022 against the petitioner of this CMP (Bhagabati Tarai) arraying her as defendant No.1 along with others in the Court of learned Senior Civil Judge, Kujanga praying for declaration of her right, title, interest and possession over the properties described in Schedule “C” of the plaint and also to declare the R.S.D. No.733 dated 22.04.2006 executed by the defendant No.2 Srikrushna Das

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CIV. Misc. Petition No.1273 of 2022

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Page 2 of 14

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in favour of the defendant No.1 (petitioner in this CMP Bhagabati Tarai) as illegal, invalid, void and the same is not binding upon her and to injunct the defendant No.1 (petitioner in this CMP) permanently from interfering in the peaceful possession of the plaintiff over “C” schedule suit properties stating in her plaint in nutshell that,

¶26

the suit properties along with other properties originally belonged to one Satish Chandra Das. After the death of Satish Chandra Das, the suit properties along with other properties left by him devolved upon his widow wife and his children including her vendor Subhadra Das. After the death of Satish Chandra Das, his all successors including her vendor Subhadra Das partitioned to their all joint properties including the suit properties and in such partition, the suit properties described in Schedule “C” along with some other properties fell in the share of Subhadra Das and accordingly, Subhadra Das became the exclusive owner over the suit properties. The said Subhadra Das (defendant No.5 in the suit vide C.S. No.84/2022) sold her schedule “C” suit properties in her favour i.e. in favour of the plaintiff executing

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CIV. Misc. Petition No.1273 of 2022

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Page 3 of 14

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and registering Sale Deed No.731 dated 14.03.2001 after receiving the due consideration amount and delivered possession thereof. As such, since the date of purchase i.e. since 14.03.2001, she (plaintiff) is in exclusive possession over the Schedule “C” suit properties. When the defendant No.1 created disturbances in her possession over the suit properties and claimed claiming her title thereon, then, she (plaintiff-Kalpana Tarai) filed the suit vide C.S. No.84/2022 against the petitioner in this CMP arraying her as defendant No.1 along with others including her vendor Subhadra Das praying for the aforesaid reliefs i.e. declaration and permanent injunction.

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3. In the said suit vide C.S. No.84/2022, the plaintiff (Opp. Party in this CMP) filed an I.A. vide I.A. No.66/2022 under Order 39, Rule 1 & 2 read with Section 151 CPC, 1908 against the defendant No.1 (petitioner in this CMP) praying for injuncting her temporarily from coming upon the suit land and from interfering in her peaceful possession and from causing any damage to the standing vegetable crops and from making any type of construction over the same and from

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CIV. Misc. Petition No.1273 of 2022

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Page 4 of 14

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changing the nature and character of the same till the final disposal of the suit vide C.S. No.84/2022 stating the above things.

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4. Having been noticed from the Court in I.A. No.66/2022, the defendant No.1 thereof (petitioner in this CMP) challenged the same by filing her objection taking her stands that, the suit properties along with other properties were the selfacquired properties of Satish Chandra Das. During the lifetime of Satish Chandra Das, he had divided his all properties including the suit properties between his 3 sons including the defendant No.2 Srikrushna Das on dated 28.08.1992 by executing a Will. Then, after the death of Satish Chandra Das, his 3 sons including the defendant No.2 amicably divided all the movable and immovable properties including the suit properties left by Satish Chandra Das in 3 equal shares on dated 18.12.1996. In the said partition, the suit properties described in Schedule “C” of the plaint along with other properties were allotted in favour of Srikrushna Das (defendant No.2). Accordingly, Srikrushna Das (defendant No.2) became the exclusive owner and in

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CIV. Misc. Petition No.1273 of 2022

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Page 5 of 14

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possession over the suit properties along with other properties those had fallen in his share. While, Srikrushna Das (defendant No.2) was in possession over the suit properties, he sold the same through R.S.D. No.733 dated 22.04.2006 to the defendant No.1 (petitioner in this CMP) and delivered possession thereof. Accordingly, since 22.04.2006, he (defendant No.1) is in possession over the suit properties being the owner thereof.

¶38

The Will dated 28.08.1992 executed by Satish Chandra Das in favour of his 3 sons including the Defendant No.2 has already been probated in a Probate Misc. Case No.24/2001, for which, the sale of the suit properties made by the defendant No.5 Subhadra Das in favour of the plaintiff (Opp. Party in this CMP-Kalpana Tarai) through R.S.D. No.731 dated 14.03.2001 cannot be held as legal. Because, the Will dated 22.08.1992, which was executed by the original owner Satish Chandra Das in favour of the vendor of the Opp. Party along with his two other brothers has already been probated and as such, the vendor of the Opp. Party (defendant No.2) was the owner of the suit properties, for which, the petitioner

¶39

CIV. Misc. Petition No.1273 of 2022

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Page 6 of 14

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has no prima facie case and she has also no possession over the suit properties. Therefore, the I.A. under Order 39, Rule 1

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& 2 read with Section 151 of the CPC, 1908 filed by the petitioner/plaintiff for temporary injunction against the Opp. Party/defendant No.1 is liable to be dismissed.

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5. After hearing from both the sides, the learned Senior Civil Judge, Kujanga allowed that I.A. No.66/2022 on dated 20.07.2022 on contest in favor of the petitioner/plaintiff and restrained the Opp. Party (defendant No.1) temporarily from interfering in the peaceful possession of the plaintiff (petitioner) over the suit properties and from causing any damage to the standing vegetable crops and house and also from making any type of construction over the same and from changing the nature and character of the same in any manner till the final disposal of the suit vide C.S. No.84/2022 assigning the reasons that,

¶44

When the suit properties were the properties of Satish Chandra Das and when the vendor of the petitioner (defendant No.5 in the suit) is one of the successors of Satish Chandra Das and when the defendant No.5 has alienated the suit properties

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CIV. Misc. Petition No.1273 of 2022

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Page 7 of 14

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in favour of the petitioner through R.S.D. No.731 dated 14.03.2001 prior to the sale deed No.733 dated 22.04.2006 in

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favour of the Opp. Party executed by the defendant No.2 and when the so called Will was probated on 10.12.2010 by the learned District Judge, Cuttack much after the execution of R.S.D. No.731 dated 14.03.2001 in favour of the petitioner and when the said probation of the Will in Probate Misc. Case No.24/2001 is under challenge before the High Court, then, on the basis of delivery of possession of the suit properties through the earlier sale deed No.731 dated 14.03.2001 in favour of the

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petitioner, the Opp. Party is restrained temporarily from interfering in the peaceful possession of the plaintiff (petitioner) over the suit properties and from causing any damage to the standing vegetable crops and house and also from making any type of construction and from changing the nature and character of the same in any manner till the final disposal of the suit vide C.S. No.84/2022.

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6. On being aggrieved with the above order of temporary injunction passed on dated 20.07.2022 in I.A. No.66 of 2022 against the Opp. Party, the Opp. Party challenged the same by

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CIV. Misc. Petition No.1273 of 2022

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Page 8 of 14

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preferring an appeal vide F.A.O No.25/2022 under Order 43, Rule 1(r) of the CPC, 1908 before the learned Addl. District Judge, Kujanga being the appellant against the petitioner in the I.A. No.66/2022 arraying her as respondent.

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After hearing from both the sides, the learned Addl. District Judge, Kujanga dismissed to that F.A.O. No.25/2022 of the Opp. Party as per its Judgment dated 31.10.2022 on contest concurring/accepting the findings and observations made by the learned Senior Civil Judge, Kujanga in I.A. No.66/2022.

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7. On being dissatisfied with the aforesaid dismissal of the F.A.O No.25/2022 of the Opp. Party in the I.A. No.66/2022 passed on dated 31.10.2022 by the learned Addl. District Judge, Kujanga, the Opp. Party in I.A. No.66/2022 (appellant in F.A.O. No.25/2022) challenged the same by filing this CMP under Article 227 of the Constitution of India, 1950 being the petitioner arraying the plaintiff as Opp. Party.

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8. I have already heard from the learned counsel for the petitioner and the learned counsel for the Opp. Party.

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CIV. Misc. Petition No.1273 of 2022

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Page 9 of 14

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9. On the basis of the rival submission of the learned

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counsels of both the sides, the crux of this CMP is that,

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Whether the findings arrived by the two Courts i.e. learned Trial Court and learned First Appellate Court in I.A. No.66 of 2022 and F.A.O. No.25 of 2022 arising out of the suit vide C.S. No.84 of 2022 are interferable in this

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CMP under Article 227 of the Constitution of India, 1950 exercising its supervisory jurisdiction?

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10. Both the parties are claiming possession over the case land described in Schedule “C” of the plaint on the basis of their respective registered sale deeds.

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When the Opp. Party (plaintiff) is claiming title and possession over the suit properties on the basis of the sale deed No.731 dated 14.03.2001 executed by Subhadra Das (defendant No.5, daughter of Satish Chandra Das) in her favour, but, at the same time, the petitioner (defendant No.1 in the suit) is claiming title and possession over the suit

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CIV. Misc. Petition No.1273 of 2022

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Page 10 of 14

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properties on the basis of the R.S.D. No.733 dated 22.04.2006

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executed by Srikrushna Das, son of Satish Chandra Das.

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Out of the aforesaid two sale deeds of the aforesaid

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parties in respect of the suit properties, the sale deed in favour of the Opp. Party is prior to the sale deed of the petitioner.

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11. As per Section 48 of the T.P. Act, 1882 a prior sale prevails over the subsequent sale even if the confirmation of the prior sale was after the subsequent sale.

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It is the settled propositions of law that, High Court in exercise of its jurisdiction under Article 227 of the Constitution of India ought not to interfere with the findings arrived at by the two Courts below.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:

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I. In a case between S.P. Deshmukh Vs. Shah Nihal Chand Waghajibai Gujarati reported in (1977) 3 SCC 515 that, High Court in exercise of its jurisdiction under Article 227 of the Constitution of India ought not to have interfered with the findings arrived at by the two Courts below.

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CIV. Misc. Petition No.1273 of 2022

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Page 11 of 14

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II. In a case between Kesharlal H. Pardeshi Vs. Vithal S. Patole (dead) by LRs reported in (2005) 10 SCC 249 that, High Court in exercise of its jurisdiction under Article 227 of the Constitution of India ought not to have interfered with the findings arrived at by the two Courts below.

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III. In a case between Surya Dev Rai Vs. Ram Chander Rai & Others reported in (2003) 6 SCC 675 that, exercise of supervisory jurisdiction under Article 227 of the constitution of India is not available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

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IV. In a case between M/s. Estralla Rubber Vs. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 that, High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or Tribunals.

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CIV. Misc. Petition No.1273 of 2022

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Page 12 of 14

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12. Here in this matter at hand, when the learned Senior Civil Judge, Kujanga and the learned Addl. District Judge, Kujanga both have passed the order for temporary injunction against the petitioner (defendant No.1) and in favour of the Opp. Party (plaintiff) on the basis of the prior sale deed in respect of the suit properties executed by one of the successors of the original owner i.e. Subhadra Das (defendant No.5), then, at this juncture, it cannot be held that, the impugned order and Judgment passed by the learned Senior Civil Judge, Kujanga and the learned Addl. District Judge, Kujanga in I.A. No.66/2022 and F.A.O No.25/2022 respectively against the petitioner in this CMP suffers from any error apparent on the face of the proceeding or the same are based on clear ignorance or utter disregard of the provisions of law, then, at this juncture, in view of the principles of law enunciated by the Apex Court in the ratio of the aforesaid decisions, the intereference by this Court exercising the supervisory jurisdiction under Article 227 of the constitution of India, 1950 with the impugned order & Judgment dated 20.07.2022 and 31.10.2022 respectively

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CIV. Misc. Petition No.1273 of 2022

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Page 13 of 14

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passed in I.A. No.66/2022 and F.A.O. No.25 of 2022 do not warrantable. For which, this CMP filed by the petitioner cannot be allowed.

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13. Therefore, there is no merit in the CMP filed by petitioner. The same must fail.

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14. In result, this CMP filed by the petitioner is dismissed on contest.

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15. The learned Senior Civil Judge, Kujanga is directed to dispose of the suit vide C.S. No.84/2022 pending before him as expeditiously as possible.

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16. As such, this CMP filed by the petitioner is disposed of finally.

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(ANANDA CHANDRA BEHERA)

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JUDGE

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High Court of Orissa, Cuttack The 22.01.2026// Rati Ranjan Nayak Sr. Stenographer

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Signature Not Verified

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Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 22-Jan-2026 16:48:42

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CIV. Misc. Petition No.1273 of 2022

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Page 14 of 14

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 20.07.2022 (Annexure-4) in I.A. No.66/2022 granting temporary injunction against the petitioner, and judgment dated 31.10.2022 (Annexure-5) in F.A.O. No.25 of 2022 dismissing the petitioner's appeal, both sought to be quashed in this CMP under Article 227.¶21
learned Senior Civil Judge, Kujanga (I.A. No.66/2022); learned Addl. District Judge, Kujanga (F.A.O. No.25 of 2022) · 20.07.2022 and 31.10.2022
Prior proceeding
Kalpana Tarai as sole plaintiff instituted C.S. No.84/2022 before the learned Senior Civil Judge, Kujanga against Bhagabati Tarai (defendant No.1) and others, praying for declaration of right, title, interest and possession over Schedule “C” properties, declaration that R.S.D. No.733 dated 22.04.2006 is illegal, invalid and void, and permanent injunction.¶22
Prior proceeding
Plaintiff filed I.A. No.66/2022 under Order 39, Rule 1 & 2 read with Section 151 CPC, 1908 seeking temporary injunction against defendant No.1 till final disposal of the suit.¶30
Prior proceeding
Defendant No.1 contested, claiming title and possession since 22.04.2006 under R.S.D. No.733 executed by Srikrushna Das (defendant No.2), who derived rights under a Will dated 28.08.1992 and a family partition of 18.12.1996.¶37
Prior proceeding
As recorded in the trial court's reasons, the Will of Satish Chandra Das stood probated in Probate Misc. Case No.24/2001 on 10.12.2010 by the learned District Judge, Cuttack, and that probate was stated to be under challenge before the High Court.¶48
Prior proceeding
Learned Senior Civil Judge, Kujanga allowed I.A. No.66/2022 on 20.07.2022 on contest, restraining defendant No.1 from interfering with the plaintiff's possession till disposal of C.S. No.84/2022.¶43
Prior proceeding
Defendant No.1 preferred F.A.O. No.25/2022 under Order 43, Rule 1(r) CPC before the learned Addl. District Judge, Kujanga against the temporary injunction order.¶53
Prior proceeding
Learned Addl. District Judge, Kujanga dismissed F.A.O. No.25/2022 by judgment dated 31.10.2022 on contest, concurring with the findings of the learned Senior Civil Judge in I.A. No.66/2022.¶54

Bhagabati Tarai v. Kalpana Tarai

Case brief

What is this about?

What did the court decide?

Bhagabati Tarai v. Kalpana Tarai

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Procedural history

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