Laxmi Behera vs Ashok Kumar Das and Others

Krushna Ram Mohapatra, J—These two appeals arise out of a common order dated 17.05.2014 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No. 92 of 2014 filed by the plaintiff/appellant under Order 39 Rules 1 and 2 read with Section 151, CPC as well as I.A. No. 146 of 2014 filed by defendants 1 and 2 under Order 39 Rule 4, CPC both arising out of CS No. 148 of 2014.

The plaintiff/appellant feels aggrieved by the impugned order, wherein I.A. No. 92 of 2014 filed by her under Order 39 Rules, 1 and 2 read with Section 151, CPC. was rejected and I.A. No. 146 of 2014 filed by defendants 1 and 2 under Order 39 Rule 4 CPC was disposed of in terms of I.A. No. 92 of 2014.

Case of the plaintiff in a nut shell is that she filed C.S. No. 148 of 2014 in the Court of learned Civil Judge (Senior Division), Bhubaneswar for declaration of her right, title, interest and confirmation of possession and in the alternative recovery of possession. Further, she prayed for a declaration that the sale deed executed on 09.04.2012 in favour of defendants 1 and 2 (respondents herein) is void and not binding on her. She also prays for a decree of permanent injunction therein. It is her case that suit properties formed part of the joint family property of one Labanya Dibya and others. In OS No. 61/1996-1, learned Sub-Judge, Bhubaneswar passed a preliminary decree in the year 1968. Subsequently, in the final decree proceeding, the suit plot, i.e., plot appertaining to plot No. 17 and Khata No. 90 to an extent of Ac.4.508 decimals fell to the share of one Kailash Chandra Rath (defendant No. 5) along with other properties. Likewise, Plot No. 130 appertaining to same Khata to an extent of Ac.0.293 decimals fell to the share of his (Kailash''s) sister, namely, Sailabala Mohapatra (defendant No. 3). Both of them are children of Duryodhan Rath, who died in the year 1977. While in possession, said Kailash Chandra Rath sold Ac.1.127 decimals out of the suit plot No. 17 measuring Ac.4.508 decimals to one Narahari @ Harihar Behera and Jitendra Behera, who are sons of the present plaintiff vide RSD dated 29.07.1986. He also sold Ac.1.127 decimals to the plaintiff on the very same day, i.e., on 29.07.1986 from out of the said plot and delivered possession to the respective purchasers. Similarly, said Kailash Chandra Rath sold rest of plot No. 17 measuring Ac.2.254 decimals to Naresh Gajendra and Suresh Gajendra vide RSD dated 19.05.2004 through his Power of Attorney, namely, Ashok Kumar Satapathy. When the matter stood thus and the plaintiff/appellant was in possession over the suit land purchased by her by raising paddy crops thereon, the defendants 1 and 2 (respondents herein) created disturbance in peaceful possession of the plaintiff/appellant on the plea that they have purchased suit plot vide RSD dated 09.04.2012 from Sailabala Mohapatra. Hence, the plaintiff filed the suit for aforesaid relief along with I.A. No. 92 of 2014 praying, inter alia, to restrain the defendants 1 and 2 (respondents herein) from interfering with her peaceful possession over the suit land and changing the nature and character thereof till disposal of the suit.

Learned Civil Judge (Senior Division), Bhubaneswar considering the emergent nature of relief sought for passed an ad interim order of injunction vide order dated 18.02.2014 and directed both parties to maintain status quo in respect of the suit property.

Pursuant to the notice issued, defendant Nos. 1 and 2/respondent appeared and filed I.A. No. 146 of 2014 under Order 39 Rule 4, CPC with a prayer to vary and vacate the aforesaid order dated 18.02.2014. They prayed to treat the contents of I.A. No. 146 of 2014 to be their objection to the I.A. No. 92 of 2014, wherein, it is contended inter alia that Duryodhana Rath, the common ancestor of Kailash Chandra Rath and Sailabala Mohapatra died in 1977. The suit plot along with others was recorded in the name of said Duryodhana Rath in Khata No. 90, plot No. 17 measuring an area Ac.4.508 decimals. On the death of Duryodhana, Sailabala mutated her name in respect of her share over plot No. 17 to an extent of Ac.2.254 decimals in a separate Khata No. 231/318. Subsequently, she converted the same to be used for non-agricultural purpose. As such, the suit land was recorded in Gharabari status in her name. Thereafter, she sold the said suit plot to defendants 1 and 2 vide RSD dated 09.04.2012 and delivered possession thereof to them. Accordingly, defendants 1 and 2 mutated their names in the ROR and have been paying land revenue in respect thereof. When Harihara Behera, son of the plaintiff, created disturbance in the peaceful possession of defendants 1 and 2, they filed CS No. 877/12 against said Harihara Behera. In I.A. No. 568/12 filed under Order 39 Rules 1 and 2, CPC arising out of said suit learned Civil Judge (Senior Division), Bhubaneswar directed both the parties to maintain status quo in respect of the suit land. Being not satisfied, defendants 1 and 2 preferred FAO No. 1 of 2013 before the learned District Judge, Khurda at Bhubaneswar and the appeal was allowed restraining said Harihar Behera from interfering with the peaceful possession of the defendants 1 and 2. Assailing the same, said Harihara filed W.P.(C) No. 9980 of 2013 in this Court which was dismissed on contest by order dated 30.10.2013 (Annexure-17 herein). The specific case of defendants 1 and 2 was that they are in exclusive possession over the suit land and in view of the order passed in FAO No. 1 of 2013, which was confirmed by this Court in W.P.(C) No. 9980 of 2013, the petition (I.A. No. 92 of 2014) under Order 39 Rules 1 and 2 would not be maintainable and prayed for dismissal of the same.

Learned Trial Court considering both the applications passed a common order on 17.05.2014 dismissing I.A. No. 92 of 2014 and also disposing of I.A. No. 146 of 214 in terms of the order passed in I.A. No. 92 of 2014. Plaintiff being aggrieved by the said order filed the aforesaid two appeals, i.e., F.A.O. No. 305 of 2015 against order passed in I.A. No. 92 of 2014 and FAO No. 306 of 2014 assailing order in I.A. No. 146 of 2014.

Mr. Mohanty, learned Senior Advocate for the appellants with vehemence submitted that by order dated 19.09.1985 passed in the final decree proceeding of OS No. 61/66-1 of the Court of learned Sub-Judge, Bhubaneswar, the suit plot fell to the share of said Kailash Chandra Rath (defendant No. 5) and plot No. 130 of said Khata measuring an area of Ac.0.293 decimals along with other plots fell to the share of his sister, namely, Sailabala Mohapatra. Said Kailash Chandra Rath while in possession, over the suit land having exclusive right, title and interest thereon sold Ac.1.127 decimals to one Laxmi Behera (plaintiff) vide RSD dated 29.07.1986 and delivered possession thereof in her favour. Since then, the plaintiff is in possession over the suit land having her right, title and interest thereof. Said Kailash Chandra Rath also sold Ac.1.127 decimals to her (plaintiff''s) son, namely, Narahari @ Harihara Behera and Jitendra Behera on the very same day, i.e., 29.07.1986. CS No. 877 of 2012 was filed by defendants 1 and 2 against said Harihara Behera in respect of the land they have purchased, which is distinctly different from that of the land purchased by the present plaintiff. Thus, neither the order in FAO No. 1 of 2013 nor the order passed in W.P.(C) No. 9980 of 2013 are binding on her. The defendants 1 and 2 have consciously not made the present plaintiff as party to the said suit as the suit land is distinctly apart from the land involved in CS No. 877 of 2012. Mr. Mohanty further contended that the consolidation patta and subsequent events thereto cannot be binding on her as she was not a party to the same. Moreover, in view of Section 4(4) of O.C.H. & P.F.L. Act a final decree proceeding will not abate in view of pendency of a consolidation proceeding. He submitted that defendants 1 and 2 being emboldened by the order pass in FAO No. 1 of 2013 and W.P.(C) No. 9980 of 2013 are bent upon to harass the plaintiff, who is an old lady of 70 years, a bona fide purchaser and is in possession over the suit property. He further contended that the effect of consolidation patta and subsequent events thereof can be considered at the time of hearing of the suit. But nevertheless defendants 1 and 2 are subsequent purchasers in respect of a different portion of land of plot No. 17 of Khata No. 90 of Mouza: Botanda, inasmuch as the suit land was purchased by her on 29.07.1986 and defendants 1 and 2 purchased a separate portion of the said Khata on 09.04.2012. Thus, even for the sake of argument, it is presumed that defendants 1 and 2 had purchased the self-same plot that was purchased by the plaintiff, title in respect of the said land cannot be said to have been transferred in respect of defendants 1 and 2 by virtue of said deed dated 09.04.2012. He further submitted that said Sailabala Mohapatra accepting the allotment of land in the final decree proceeding under Annexure-10 to this appeal sold the entire land fell to her share in the said Khata, i.e., Khata No. 90 Chaka No. 127, Plot No. 130 to an extent of Ac.0.293 decimals to one Kishori Mohan Jena vide registered sale deed, the recitals of which are very much clear to the effect that she was selling the property on the basis of allotment by virtue of Annexure-10, the final decree proceeding. Thus, Sailabala Mohapatra had no alienable right over the suit land and the sale deed executed in favour of defendant Nos. 1 and 2 cannot create any right, title and interest in their favour. He also drew attention of this Court to the order dated 11.7.2014 passed in Misc. Case No. 523 of 2014 arising out of this appeal and submitted that finding a prima facie case, this Court directed the parties to maintain status quo with regard to the possession over the disputed land till the next date and the same is continuing till date. Thus, he contended that interest of justice would be best served, if the suit is targeted and the interim order passed by this Court is allowed to continue till disposal of the suit.

Mr. Sarangi, learned counsel for the respondents, on the other hand, refuting the allegations made by Mr. Mohanty, contended that the facts involved in C.S. No. 877 of 2012 filed against the sons of plaintiff are similar to this appeal. He submitted that learned District Judge, Khurda taking into consideration the materials on record and on a threadbare discussion of the factual as well as legal aspects restrained the sons of the plaintiff to come over the suit land. However, while parting with the order passed in FAO No. 1 of 2013, the learned District Judge, Khurda directed that in the event the respondent-Harihar Behera succeeds ultimately, the appellants (defendant Nos. 1 and 2 herein) shall not claim any equity which would take care of the claim of possession of the respondents. The said order was confirmed by this Court in W.P.(C) No. 9980 of 2013 and SLP (C) No. 37598 of 2013 filed against the said order was also dismissed. Thus, Mr. Sarangi contended that interest of justice would be best served, if the appeals are disposed of with the aforesaid observations without interfering with the impugned orders. He further contended that the suit land was recorded in the name of Duryodhan Rath in the consolidation R.O.R. After his death in the year, 1977, Sailabala Mohapatra mutated her share in respect of the suit land in Mutation Case No. 2692 of 2013 in which Ac. 2.254 decimals out of Plot No. 17 in Khata No. 90 of mouza Batanda was directed to be recorded in the name of Sailabala Mohapatra-defendant No. 3. Subsequently, the said Sailabala Mohapatra converted the land to be used for non-agricultural purpose and it was recorded in her name under ''Gharabari'' Kisam.

While in possession over the suit land, she sold the suit land to defendant Nos. 1 and 2 vide registered sale deed dated 9.4.2012 and possession thereof was delivered to them. On purchase, both the defendant Nos. 1 and 2 got the land mutated in their names and are paying land revenue in respect of the suit land. Thus, Mr. Sarangi submitted that they have better title than that of the plaintiff and in that view of the matter, the impugned order was rightly passed against the plaintiff. On the basis of the aforesaid submission, he contended that the appeal should be dismissed.

On the basis of the respective arguments of the parties, the learned trial court found a prima facie case in favour of the plaintiff-appellant. However, relying upon the decision and observation made in FAO No. 1 of 2013 and W.P.(C) No. 9980 of 2013, this Court refused to grant an order of temporary injunction in favour of the appellant-plaintiff.

On a thorough scrutiny of the entire case record, I find that the plaintiff has a fair question to be raised at the time of trial. However, the plaintiff admits that the suit land has already been recorded in the names of defendant Nos. 1 and 2. However, Mr. Mohanty submitted that the appellant was not a party to the mutation proceeding and no notice was served on her in the said mutation proceeding. On perusal of the order passed in W.P.(C) No. 9980 of 2013, wherein, the contentions raised by Mr. Mohanty in this appeal, were taken care of and this Court taking into consideration the submissions made dismissed the appeal and confirmed the order passed in FAO No. 1 of 2013. Thus, I am not inclined to take a different view in this appeal. Moreover, the learned trial Court on a threadbare discussion has come to a conclusion that the balance of convenience does not tilt in favour of the plaintiff-appellant and she would not suffer any irreparable loss, if the interim order of injunction is not granted in her favour in the facts and circumstances of the case. The contentions raised by Mr. Mohanty can only be adjudicated at the time of trial of the suit.

In that view of the matter, I do not find any reason to interfere with the impugned order and these appeals are accordingly dismissed and the interim order dated 11.07.2014 stands vacated. However, it is made clear that the defendant Nos. 1 and 2 (respondents herein) shall not claim any equity in respect of the suit land and construction, if any, made thereon and in the event the plaintiff succeeds in the suit, they will hand over the vacant possession of the suit land to the plaintiff by demolishing the structure, if any, raised over it at their cost.