Orissa High Court
Laxmikanta Sahoo vs Arun Kumar Sahoo And Others ... on 6 March, 2019
Equivalent citations: AIRONLINE 2019 ORI 105
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.7 of 2017
In the matter of an application under Article 227 of the Constitution of
India.
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Laxmikanta Sahoo ................. Petitioner
---versus--
Arun Kumar Sahoo and others ................. Opp. Parties
For Petitioner : Mr.N.C. Pati,
Mr. B. Das, Advocates
For Opp. Party No.1 : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
----------------------------------------------------------------------------------- Date of Hearing: 26.02.2019 │ Date of Judgment:06.03.2019
----------------------------------------------------------------------------------- Dr. A.K. Rath, J. This petition challenges the order dated 24.11.2016 passed by the District Judge, Kendrapara in F.A.O. No.49 of 2016, whereby and whereunder the appellate court directed the parties to maintain status quo over the suit property.
02. Shorn of unnecessary details, the short fact of the case is that plaintiff-opposite party no.1 instituted C.S. No.1283 of 2013 in the court of the Civil Judge (Jr. Divn.), Kendrapara for partition against his father and brothers pleading inter alia that the suit property was purchased by his father, defendant no.2, out of joint family fund. The suit property is the joint family property. Plaintiff filed I.A. No.649 of 2013 for injunction to restrain his father from alienating the suit property. The petition was dismissed with a finding that the suit property is the self- acquired property of his father. Thereafter, he filed another suit being C.S. No.269 of 2015 in the court of the Civil Judge (Sr. Divn.), Kendrapara for 2 partition, declaration that the sale deed dated 10.4.2015 executed by his father in favour of defendant no.1 is void and illegal, permanent injunction and certain other ancillary reliefs. It was pleaded that the suit land was purchased out of joint family fund. In an amicable partition, he got Ac.0.015.5 kadi and has raised two pucca rooms over the same. He filed an application, i.e., I.A. No.54 of 2016 under Order 31 Rule 1 C.P.C. to injunct the defendant no.1 from demolishing the construction and making any construction over the suit plot. The defendant no.1 has filed objection stating that the suit land was purchased by defendant no.2 on 11.12.1979 when the plaintiff was a minor. The same was the self-acquired property of defendant no.2. The land was recorded in favour of defendant no.2 in the consolidation ROR. The defendant no.1 has purchased the suit land with the constructions made thereon. He demolished the old construction and constructed a building upto roof level. The trial court allowed the petition and restrained the defendant no.1 from demolishing the pucca house and wall of the asbestos rooms over the suit land and from constructing any house over any portion of the suit land. The unsuccessful defendant no.1 filed F.A.O. No.49 of 2016 in the court of the District Judge, Kendrapara. The appellate court directed the parties to maintain status quo over the suit land.
03. Heard Mr. N.C. Pati along with Mr. B. Das, learned Advocates for the petitioner. None appeared for the opposite party no.1.
04. In course of hearing, Mr. Pati, learned Advocate for the petitioner, submitted that defendant no.1 is a bona fide purchaser of the suit plot. After purchase, he has demolished the asbestos rooms standing over the suit land and constructed a building upto roof level. In C.S. No.1283/2013, an application for injunction (I.A. No.649 of 2013) was filed. The said application was dismissed on 30.3.2015 with a finding that the suit property is the self-acquired property of the father of the plaintiff. The said order attained finality. The suit is sub-judice. Plaintiff again filed C.S. No.269/2015 for partition and certain other ancillary reliefs in the court of the Civil Judge (Sr. Divn.), Kendrapara. The courts below brushed 3 aside the order passed by the trial court in I.A. No.649 of 2013 arising out of C.S. No.1283/2013. He further submitted that since the defendant no.1 has constructed a building upto roof level, he may be allowed to cast the roof. He placed reliance on the decision of the Apex Court in the case of Mandali Ranganna and others, etc. vs. T. Ramachandra and others, 2008 AIR SCW 3817 and this Court in the case of M/s. Graftek Pvt. Ltd. and others vs. Sri Lord Lingaraj Mahaprabhu Bije, Bhubaneswar, 1998 (II) OLR-404.
05. The impugned order reveals that the assertion of the plaintiff that defendant no.1 has undertaken that construction work over a portion of the suit land has admitted by defendant no.1 in his show cause. The defendant no.1 asserts that he has constructed a building upto roof level.
06. In Mandali Ranganna and others etc., construction was made. The Apex Court held that rightly or wrongly constructions have come up. They cannot be directed to be demolished at that stage. It further held that interest of justice would be subserved, if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub-judice and all sales shall be subject to the ultimate decision of the suit.
07. In M/s. Graftek Pvt. Ltd. and others, the trial court allowed the application of the plaintiff for injunction and restrained the defendants from changing the nature and character of the disputed land from alienating the land till disposal of the suit. The defendants filed appeal before this Court. The Court allowed the defendants to alienate the land subject to the following conditions.
(1) The defendants shall furnish an undertaking in the trial Court to the effect that they shall not claim any equity and shall deliver vacant possession to the plaintiff in the event of success of the plaintiff. If the undertaking is not furnished, the appeal shall be deemed to have been rejected;4
(2) In case the disputed land or part of it is alienated, a specific clause shall be incorporated in the sale deed indicating that the alienated property is subject-matter of the present suit and the purchaser shall be bound to deliver vacant possession of the land in the event of success of the plaintiff; and (3) Violation of the above conditions would amount to contempt of the order of the High Court.
08. Keeping in view the decisions cited supra, the petition is disposed of with the following conditions.
(1) The defendant no.1 shall file an affidavit before the trial court that he shall not claim equity and shall deliver vacant possession to the plaintiff, in the event the plaintiff succeeds in the suit.
(2) Violation of the aforesaid condition shall be construed the contempt of the order of the High Court.
09. Since the parties in both the suits are almost identical and issues are same, this Court directs that C.S. No.1283 of 2013 and C.S. No.269 of 2015 be heard analogously. Accordingly, the Civil Judge (Jr. Divn.), Kendrapara is directed to transmit the records of C.S. No.1283 of 2013 to the court of the Civil Judge (Sr. Divn.), Kendrapara. The Civil Judge (Sr. Divn.), Kendrapara shall hear the suits analogously and dispose of the same as expeditiously as possible preferably within a period of six months.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 6th March, 2019/Basanta