Sarat Kumar Panda and Others vs Ajit Kumar Adhikar and Others

Krushna Ram Mohapatra, J.—This appeal under Order 43 Rule 1(r) of the Code of Civil Procedure has been filed assailing the order dated 6.11.2012 passed by the learned Civil Judge (Senior Division), Parallakhemundi in I.A. No. 20 of 2012 arising out of C.S. No. 43 of 2012 allowing the application under Order 39 Rules 1 and 2 C.P.C. filed by the plaintiffs-appellants directing both the parties not to create any third party interest in the suit properties till disposal of the suit.

The suit is for partition of the plaint schedule properties. The case of the plaintiffs is that the suit schedule properties stand recorded in the name of common ancestor, namely, Laxmikanta Adhikari, who died intestate in the year 1986 and his wife (Saraswati) died on 21.5.2002. The suit schedule properties are joint family properties being inherited by said Laxmikanta. Said Laxmikanta and Saraswati had three sons and three daughters. The plaintiffs are the sons of Gopal Krishna Adhikari (defendant No. 2), who is one of the sons of said Laxmikanta. The defendant Nos. 1 and 6, namely, Rama Krishna Adhikari and Sarat Kumar Adhikari are two other sons of said Laxmikanta. Defendant Nos. 3, 4 and 5, namely, Manjula Patra, Nirmala Panda and Salila Adhikari, are the daughters of said Laxmikanta. Defendant No. 7, namely, Swarupa Panda, is the daughter of defendant No. 6-Sarat Kumar Adhikari and her husband Prafulla Kumar Mishra has been impleaded as defendant No. 8 to the suit. When the plaintiffs were in their teens, their father Gopal Krishna Adhikari deserted them and took no interest for the welfare of the plaintiffs or for the management of ancestral joint family properties. The defendant No. 1, namely, Rama Krishna Adhikari, was staying out of the village because of his employment and he also did not take care of the joint family property. The defendant Nos. 3, 4 and 5 being the daughters of Laxmikanta after their marriage had never shown any interest in the joint family properties. Taking advantage of the situation, the defendant No. 6-Sarat Kumar Adhikari, who claims to be the adopted son of one Bhanumati Panda, who is none other than the sister of Laxmikanta, started taking interest of the joint family properties and misappropriated the usufructs since 2002-03 and made efforts to alienate the suit schedule properties without the knowledge and consent or authority of the plaintiffs and defendant Nos. 1 to 5. Irrespective of the past litigation between the defendant No. 2 (father of the plaintiffs) and defendant No. 6-Sarat Kumar Adhikari, both of them have joined hands to deprive the plaintiffs from their legitimate share in the property. The defendant Nos. 7 and 8 also helped them in achieving their illegal goal. On 6.6.2012, the plaintiffs approached the defendants more particularly defendant Nos. 1 and 2 for amicable partition of the entire suit schedule property to which they avoided being persuaded by defendant No. 6. The defendant No. 6 has admittedly no share in the suit schedule properties. However, he managed to create a fraudulent sale deed in favour of his daughter (defendant No. 7) on 13.6.2012 in respect of part of the suit properties, which is void ab initio. The ancestral property includes valuable house and house site in the town of Parallakhemundi and also agriculture lands. Thus, the plaintiffs had no option other than to file the suit for partition. Along with the plaint, the plaintiffs also filed an interim application under Order 39 Rules 1 and 2 C.P.C. reiterating the aforesaid averments in the plaint to restrain the defendant Nos. 6, 7 and 8, who are instrumentalities in creating disturbance over the suit properties, from alienating and creating any third party interest in the suit schedule properties till disposal of the suit.

The defendant Nos. 6 to 8 (appellants herein) filed their objections to the interim application refuting the allegations made in the I.A. Reiterating the averments made in their written statement, they contended that defendant Nos. 1 and 2 have separated from their father since long. The defendant No. 2 (father of the plaintiffs) had already received his share in the joint family property. The plaintiffs can work out their share from the properties received by the defendant No. 2 in the family partition. The suit schedule properties are not the joint family properties. Out of the suit schedule properties, an extent of Ac. 17.482 decimals fell to the share of his adoptive mother, namely, Bhanumati, in the family partition over which the plaintiffs have no right, title, interest or possession. After the death of Bhanumati, the defendant No. 6 stepped into her shoes and has been possessing the suit property with his absolute right, title and interest thereon. The rest of the land in the suit schedule properties was the exclusive property of late Laxmikanta Adhikari (father of defendant Nos. 1 to 6), who bequeathed the same in favour of defendant No. 6 by virtue of a Will. Thus, the plaintiffs have no right, title, interest or possession over the same. The land sold to the defendant No. 7 by defendant No. 6 was his exclusive property to which he had succeeded from his adoptive mother, namely, Bhanumanti Panda. The plaintiffs have also made no prayer in the suit for setting aside the sale deed executed in favour of defendant No. 7. Thus, the defendant No. 7 possessed the same with her own right, title and interest thereon. Therefore, the plaintiffs have no prima facie case or balance of convenience in their favour and they would not suffer any irreparable loss, if the order of injunction is refused. Thus, they prayed for dismissal of the petition being not maintainable and being devoid of any merit.

The leaned Civil Judge (Senior Division), Parallakhemundi considering the rival contentions of the parties passed the impugned order against which this appeal has been filed.

In course of argument, Mr. Rao, learned counsel for the appellants strenuously urged that one Gobinda Adhikari was the original recorded tenant in respect of the entire suit property. Said Gobinda Adhikari and his wife Ratnamani had two daughters, namely, Bhanumati and Radhamani. As they had no son, after death of Gobinda, Ratnamani adopted Laxmikanta as her son. Gobinda had 34 acres of land. Radhamani and her husband Madan predeceased Gobinda issueless. In the family partition, Laxmikanta received 17 acres of land towards his share. The defendant Nos. 1 and 2 to the suit, who are sons of late Laxmikanta, have received their share from the said Laxmikanta.

The appellant No. 1-defendant No. 6, namely, Sarat Kumar Adhikari, who was the 3rd son of said Laxmikanta, was adopted by Bhanumati in 1968 and after her death, the appellant No. 1 succeeded to her interest to an extent of Ac. 17.482 decimals. The defendant Nos. 1 and 2 after receiving their share from Laxmikanta had either mortgaged or sold the same. The factum of adoption of the appellant No. 1 by Bhanumati has been confirmed by the learned Civil Judge (Senior Division), Parallakhemundi in C.S. No. 35 of 2003, which is at present pending before this Court in RSA No. 128 of 2009 filed by the father of the plaintiffs. The mother of the plaintiffs had filed C.S. No. 5 of 2003 wherein she admitted that her husband was separated from the joint family. Apart from that, the defendant No. 2, namely, Gopal Krishna Adhikari (father of the plaintiffs) had also filed a suit for partition, which was dismissed for default of the plaintiffs therein. Thus, the plaintiffs-respondents are estopped from agitating the said issue in another suit.

Mr. Rao further contends that these material facts though available on record has not taken into consideration by the learned Civil Judge while adjudicating the interim application, which amounts to non-application of his judicial mind and non-consideration of materials on record. Thus, the appellants (defendant Nos. 6 to 8), who are the true owner of the suit properties, should not have been restrained from enjoying the suit properties. Therefore, he prayed for setting aside the impugned order.

Mr. Mishra, learned counsel for the respondents, on the other hand, refuting the contention raised by Mr. Rao, submitted that R.O.R. in respect of the suit property stands recorded in the name of common ancestor, namely, Laxmikanta Adhikari. Though it is contended that there was a family settlement in the year, 1942 in between Bhanumanti and Laxmikanta, neither the said document was filed before the learned trial court nor any document was filed to show that such a settlement was given effect to by the parties thereto. He further contended that when the suit is sub-judice, lis should be protected and, therefore, the learned Civil Judge has rightly passed the impugned order restraining both the parties from alienating the suit schedule properties till disposal of the suit in order to maintain equity. Therefore, the plaintiffs-respondents would suffer irreparable loss, if the interim order is vacated or modified or set aside, which may lead to multiplicity of litigation.

Perused the plaint, written statement, I.A., objection and settlement deed, which were produced before this Court pursuant to the direction of this Court. The genuineness and correctness of the settlement deed of the year, 1942 can be gone into at the time of trial. Moreover, the settlement deed relates to the property of Ratnamani. Prima facie there is no material to co-relate the lands involved in the settlement deed of 1942 with that of the suit land. Hence, no opinion can be expressed on the settlement deed dated 3.7.1942 at this stage. From the pleadings of the parties, it appears that there is serious dispute between the parties with regard to the ownership of the suit schedule properties. The R.O.R. in respect of the suit schedule land stands recorded in the name of Laxmikanta Adhikari. Therefore, at this stage, the suit schedule property prima facie appears to be joint family property. In that view of the mater, the learned trial court was correct in holding that the plaintiffs-respondents have a prima facie case and, the balance of convenience and equity lie in their favour in view of the fact that R.O.R. in respect of the suit land stands recorded in the name of Laxmikanta. As such, the plaintiffs-respondents would have suffered irreparable loss, if no injunction order has been passed in their favour.

In view of the facts and circumstances of the case and discussions made above, I find no merit in this appeal and the same is accordingly dismissed, but in the circumstances, there shall be no order as to cost.