Chanda vs Rama Chandra Sahu and Others

Krushna Ram Mohapatra, J.—This appeal arises out of the order dated 22.9.2014 passed by the learned Civil Judge (Senior Division), Sundargarh in I.A. No. 76 of 2014 filed under Order 39 Rule 1 and 2 C.P.C. arising out C.S. No. 129 of 2010 refusing the prayer for temporary injunction.

The plaintiff No. 2 is the appellant and defendant No. 5 is the contesting respondent No. 1 as well as plaintiff No. 1 is the proforma respondent in this appeal. In C.S. No. 129 of 2010, the plaintiffs prayed for a decree to declare different sale deeds executed in favour of defendant No. 5, who is respondent No. 1 in this appeal, as null and void, and not binding on the plaintiffs and permanent injunction restraining the defendant Nos. 35 to 42 from entering upon the suit land and for partition. The case of the plaintiffs, in short, is that one Bhuin was the common ancestor, who had two sons, namely, Chhedi Sahu and Baidu Sahu. The defendant Nos. 1 and 2 are sons of Nathu Sahu, who was the son of said Baidu Sahu. On the other hand, Chhedi Sahu had two sons, namely, Makhanlal and Babulal. The plaintiffs are daughters of said Babulal. It is stated that Chhedi and Nathu had separated in all respect prior to 1936 which is borne out from Sabik R.O.R. No. 34 of mouza Jharbeda and their respective possessions were recorded in the remarks column of said R.O.R. Out of Schedule ''A'' land, defendant Nos. 1 and 2, who are both sons of Nathu Sahu, have got Ac. 9.45 decimals of land and rest of the land was in possession of Chhedi. It is further asserted that Nathu sold away the entire Ac. 9.45 decimals of land allotted to him on 14.01.1967 in favour of one Kishorilal Sahu by virtue of an unregistered sale deed and left the village and stayed at Sahajbahal. The R.O.R. in respect of Hal Khata No. 174 of mouza Jharbeda to an extent of Ac. 63.75 decimals of land was recorded in the names of Makhanlal Sahu and Babulal Sahu, who are both sons of Chhedi Sahu. Sriti Sahu, wife of Nathu Sahu, who had two sons, namely, Khageswar and Nageswar (defendant Nos. 1 and 2). Though Khageswar and Nageswar had no subsisting right over Hal Khata No. 174, taking advantage of recording of their names in the said Khata, they filed a collusive suit i.e. Title Suit No. 79 of 1997 before the court of learned Civil Judge (Senior Division), Sundargarh without impleading the plaintiffs as parties therein. The said suit ended in compromise allotting Ac. 4.22 decimals of land to each of them. The plaintiffs for the benefit of joint family sold an area of Ac. 3.70 decimals of land of the said Khata No. 174 and accordingly, Plot No. 2063 was not included in the suit. Taking advantage of the collusive decree passed in Title Suit No. 79 of 1997, several sale deeds were executed by the co-sharers without taking consent of the plaintiffs. Likewise defendant Nos. 1 and 2 also executed sale deeds in favour of defendant No. 5 without consent of the plaintiffs. Defendant No. 5 on the basis of the said sale deed filed a mutation case and got the land mutated in his name. When the defendant No. 5 tried to evict the plaintiffs from the suit land and stacked the materials to raise construction over the same, the plaintiffs filed the suit for the aforesaid reliefs.

Reiterating the averments made in the plaint, the plaintiffs also filed I.A. No. 76 of 2014 against defendant No. 5. It is stated in the said interim application that defendant No. 5 vide Mutation Case No. 844 of 2009 got the land mutated in his name. Against the said order, the plaintiffs filed Mutation Appeal No. 9 of 2011 and the said appeal was allowed setting aside the order passed in Mutation Case No. 844 of 2009. In spite of the above, defendant No. 5 was successful in converting the case land from agricultural to non-agricultural purpose and started digging earth for the purpose of raising construction. Hence, the plaintiffs prayed for grant of interim injunction against defendant No. 5 to restrain him from raising any construction over Schedule ''B'' land and not to evict them from the said land during pendency of the suit. They also prayed to restrain the defendant No. 5 from mortgaging the ''B'' Schedule land.

Defendant No. 5, who is the sole opposite party in the interim application, filed objection, inter alia, asserting that Hal Khata No. 174 of mouza Jharbeda was amicably partitioned between co-sharers and their respective shares were transferred in favour of strangers. Likewise, the plaintiffs sold Ac. 2.400 decimals of land out of said Khata No. 174 in favour of one Parsuram Sahu vide registered sale deed No. 549 of 2005 and the same was mutated in the name of said Parsuram Sahu vide Mutation Case No. 1022 of 2005. They also sold Ac. 3.220 decimals of land to OCL India Limited situated at Rajgangpur vide registered sale deed No. 267 of 2007 and the said land was mutated in favour of OCL vide Mutation Case No. 751 of 2007, but the said fact was suppressed by the plaintiffs both in the plaint as well as in the I.A. to mislead the court. It is further stated that Chhedi, son of Bhuin and Nathu son of Bothu @ Bodh Sahu are recorded tenants in respect of Sabik Khata No. 34 of mouza Jharbeda measuring an area of Ac. 60.070 decimals of land. Both of them have got half interest in the aforesaid holding and during current settlement, Hal Khata No. 174 of mouza Jharbeda was prepared in respect of Ac. 63.570 decimals of land constituting 36 plots. In both the settlements as stated above, plot-wise possession of the tenants (co-sharers) was recorded but after amicable settlement, the branch of Nathu Sahu was given land of Sahajbahal and a part of Plot No. 2035 to an extent of Ac. 4.220 decimals of land was allotted to Khageswar and Nageswar, who are both sons of Nathu, by virtue of the decree passed on 15.5.2004 in T.S. No. 79 of 1997. Thus, the rest Ac. 55.650 decimals of land remained in joint possession of legal heirs of Chhedi and defendant No. 5 purchased Ac. 0.220 decimals of land from the share of Khageswar and others out of Hal Plot No. 2035. It was also asserted that a petition bearing No. 3 of 2005 under Section 19(1)(c) of the O.L.R. Act was filed by some of the co-sharers for partition but due to lack of consent of the parties, the said case was dropped. However, there is severance of status of the parties and the co-sharers were possessing and dealing with separate parts of possession independently. Defendant No. 5 also furnished the details of land sold by different co-sharers in exercise of their rights over parcels of land they were possessing. Defendant No. 5 also questioned the maintainability of the suit by the married daughters of Babulal who died in the year, 1990. On the aforesaid assertion, defendant No. 5-respondent prayed for dismissal of the I.A. as not maintainable.

The learned Civil Judge (Senior Division), Sundargarh in the aforesaid I.A. considering the rival contentions of the parties held that though the plaintiffs have a prima facie case, the balance of convenience do not lean in their favour so also the plaintiffs failed to make out a case of irreparable loss in their favour, if the injunction is not granted. As such, the learned Civil Judge (Senior Division), Sundargarh vide his order dated 22.9.2014 while refusing the prayer for injunction directed the opposite party (present respondent No. 1) to file an affidavit within seven days to the effect that if the suit would be decreed in favour of the plaintiffs and in the final adjudication, the land over which construction is contemplated would not be allotted in his favour, he could not claim any equity over the same. Assailing the said order, the plaintiff No. 2 only preferred this appeal impleading the plaintiff No. 1 as proforma respondent.

At the outset, the defendant No. 5 (respondent No. 1) raised the question with regard to maintainability of the suit as well as this appeal by married daughters contending that their father, namely, Babulal Sahu died in the year 1990 and the succession had already been opened from that date. As such, by the date the amended provision of Section 6 of the Hindu Succession Act came into force, the succession had already taken place and the plaintiffs could not have maintained the suit.

Mr. S.S. Das, learned Senior Advocate appearing for the appellant strongly refuted such contention and urged that though succession had already been opened, but since partition had not taken place between the co-sharers, the amended provision of Section 6 of the Act is applicable and thus, the suit is maintainable. He also relied upon several decisions in support of his contention. But I hesitate to enter into the arena of controversy with regard to maintainability of the suit because the trial court while adjudicating the I.A. opined that the plaintiffs have a prima facie case. Hence, any finding with regard to maintainability of the suit at this stage may affect the merit of the case of either of the parties in the suit. Moreover, when the finding on the question of prima facie case is not challenged, it is not necessary for this Court to deal with the said issue. Mr. Das, learned Senior Advocate further argued that the court while adjudicating the matter in issue should decide the question as to whether the nature of injunction prayed for is available to be granted in favour of the plaintiffs. Needless to mention here that the plaintiffs had prayed for an ad interim injunction to restrain the defendant No. 5 from raising any construction over the suit land. It is strenuously urged that there is no partition by metes of bounds in the family in respect of the suit land and the plaintiffs are in possession of the same. The defendant Nos. 1 and 2 without taking consent of the plaintiffs sold a portion of the suit land to the defendant No. 5 by registered sale deed. On purchase of said portion of the suit land, the defendant No. 5 filed Mutation Case No. 844 of 2009 and the suit land was mutated in his name. Assailing the said order, the plaintiffs filed Mutation Appeal No. 9 of 2011 in which the order passed in Mutation Case No. 844 of 2009 was set aside and the matter was remitted back to the concerned Tahasildar for fresh adjudication. It is also urged that despite the fact that the mutation appeal was allowed, the concerned Tahasildar in collusion with the defendant No. 5 changed the nature of agricultural land and allowed the same to be used for non-agricultural purpose. However, during course of argument, it was brought to the notice of this Court that the order passed in Mutation Appeal No. 9 of 2011 was challenged by defendant No. 5 in W.P.(C) No. 14867 of 2014 and this Court vide order dated 5.9.2014 in Misc. Case No. 14745 of 2014 directed that further proceedings in Remand Misc. Case No. 844 of 2009 pending before the Tahasildar (supra) shall remain stayed until further orders. As such, the record of the suit land was maintained in the name of defendant No. 5. On the aforesaid backdrop, Mr. Das, learned Senior Advocate urged that for the purpose of a fair trial, the respondent No. 5 should be restrained from raising any construction over the suit land lest the construction, if raised, may become irreversible by the time the dispute is decided and it would preclude just and fair decision of the matter. Mr. Das, learned Senior Advocate in support of his contention relying upon the decision in the case of Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, AIR 1983 SC 742 : (1983) 1 SCALE 775 : (1983) 4 SCC 31 , submitted that in the said case, the plaintiff and defendant were found to be in possession of about half portion of the disputed land and the defendant contemplated to put construction on the entire land. Thus, taking into consideration the facts and circumstances of the said case, the Hon''ble Apex Court while holding that if the respondents are allowed to put up construction by the use of F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude, fair and just decision of the matter. If, on the contrary, injunction is granted as prayed for, the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq. mtrs. of land on which they can put up construction. Thus, taking consideration the facts and circumstances of the case, the Hon''ble Apex Court restrained the respondents therein from interfering with the possession of the plaintiff-appellants of the suit land and they are further restrained from using the F.S.I. on the footing that they are in possession of the whole of the land. He further relied upon the decision in the case of Narayan Bisoi and Another Vs. Raghunath Bisoi, (1986) 2 OLR 145 , wherein this Court while deciding the revision against an order passed in an application under Order 39 Rule 1 and 2 C.P.C. held that while the suit for partition is pending, no permanent construction should be made or permitted on the suit homestead land and all the parties should maintain status quo till their shares are defined by the preliminary decree and adjustments and equities are settled in the final decree proceeding. He also relied upon the decision in the case of Aman Nath v. Atul Nath and others, reported in 2002 (5) SCC 760 , wherein the Hon''ble Apex Court in approving the earlier decision in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, AIR 1990 SC 867 : (1990) 1 JT 199 : (1990) 1 SCALE 166 : (1990) 2 SCC 117 : (1990) 1 SCR 332 , held that the relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. Reliance was also placed on the judgment in the case of Shyama Kishore Bal v. Kishore Talkies at Nanpur and others, reported in 79 (1995) CLT 252, wherein this Court held that an interlocutory or interim injunction is to preserve the matters "in situ" until the case can be tried. Mr. Samal, learned counsel for the respondents, on the other hand, submitted that there is no quarrel on the points of law decided in the aforesaid cases relied upon by the appellant but prohibitory orders or interlocutory orders are being passed by the Court taking into the facts and circumstances of each case, especially the three ingredients, i.e., a prima facie case, balance of convenience and irreparable loss of each case coming up for adjudication. In the case at hand, this Court need not go into the prima facie case as it has already been held in favour of the plaintiffs and the same is not assailed by defendant No. 5-respondent No. 1. This Court has to carefully scrutinize the materials to find out the relative balance of convenience or inconvenience of the parties, if an interlocutory or interim order is granted. There is no dispute of the fact that out of the same Khata i.e. Khata No. 174 of Schedule ''B'' property, the co-sharers including the plaintiffs (appellant and proforma respondent) are disposing of land independently. It is not disputed by the appellant that the plaintiff No. 1 is a party to RSD Nos. 549 of 2005 and 267 of 2007 although she claims that the sale was made for the benefit of the family, which, of course, is a matter of trial. There is also no dispute to the effect that parcels of land were sold to defendant No. 5 by defendant Nos. 1 and 2 by virtue of the registered sale deeds and the same has already been mutated in his name and the nature of the land has already been changed to be used for non-agricultural purpose by the competent authority. Of course, the order passed in mutation matter is sub-judice before this Court. In addition to the above, during course of argument, it is concealed by both the parties that a Crusher Unit has already been set up over the disputed land. Taking into consideration the aforesaid undisputed facts, this Court is of the considered view that any kind of restraint order will put the defendant No. 5-respondent in a relatively more inconvenience than the appellant.

Mr. Das, learned Senior Advocate also relied upon the decision in the case of Bauri and Others Vs. Natabar Swain and Others, AIR 1982 Ori 268 and contended that the Court can take notice on the changed circumstances in order to shorten the litigation and can grant a relief of recovery of possession even without pleadings, particularly when the defendants were not prejudiced on account of lack of notice. In the said case, the plaintiffs after filing of the suit were dispossessed in violation of the order of injunction passed against the defendants and thus, this Court had granted a relief of recovery of possession in the absence of any relief claimed to that effect. Thus, the point of law decided in the said case has no application to the facts of the case at hand. The plaintiff No. 2 who was a party in I.A. No. 76 of 2014 is not a party in the present appeal. Interestingly, the said plaintiff No. 2, namely, Surya Sahu, who is the proforma respondent in this appeal, was a party to the several sale deeds executed by different co-sharers in Khata No. 174. The plaintiffs also do not disclose, in detail, the land sold by different co-sharers including them. However, they have stated in the plaint that the land sold by them is for the benefit of joint family. When the plaintiffs themselves had exercised their independent rights over the suit land, it is not understood as to why the defendants should be prevented from the same, more particularly when the suit land was recorded in their names in a decree passed in T.S. No. 79 of 1997. Looking at the conduct of the plaintiffs, it cannot be ruled out that they have come to the Court with clean hands particularly to seek for a relief of interim injunction, which is a relief of equity.

Coming to the question of irreparable loss, Mr. Das, learned Senior Advocate appearing for the appellant strenuously urged that if the defendant No. 5-respondent No. 1 is allowed to proceed with the construction of Crusher Unit, then the nature of land would be changed and it will be no more fit to be used for the purpose of agriculture. Thus, they will suffer irreparable loss, if the interim order of injunction is not granted. Moreover, it is submitted that a similar nature of relief has already been granted as against defendant Nos. 33 to 38 in I.A. No. 24 of 2010 arising out of the same suit. No material is placed before this Court to reach at a conclusion that in fact, the appellant will suffer a loss, which cannot be compensated in terms of money, if the interim injunction is refused. Dealing with the said contention, the trial court has already protected the interest of appellant by directing the respondents to file an affidavit within seven days from the date of passing of the impugned order to the effect that if the suit would be decreed in favour of the plaintiffs and in the final adjudication, the land over which construction is being raised would not fall to the share of defendant Nos. 1 and 2 or 5, then the defendant No. 5 would not claim any equity over the same. No material is also placed before this Court to come to a conclusion that the order passed in I.A. No. 24 of 2010 arising out of the same suit is of similar nature. Moreover, it is submitted by the parties that the Crusher Unit has already been set up over the suit land. Hence, this Court is of the considered opinion that the appellant will not suffer any irreparable loss, if the interim order of injunction is refused.

Thus, this appeal merits no consideration and the same is accordingly dismissed, but in the circumstances, there shall be no order as to cost.