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Judgment
R.K. Pattanaik, J
Instant petition is filed by opposite party Nos.1 to 3 and 8 seeking recall of the Court’s order dated 13th February, 2025 in CMP No.188 of 2025 and to direct the parties to the lis to maintain status quo over the suit schedule property with a further direction to the learned Additional Senior Civil Judge, Kendrapara to dispose of the suit in C.S. No.114 of 2011 at the earliest and within a stipulated period necessary for the ends of justice.
Heard Mr. Dash, learned counsel for opposite party Nos.1 to 3 and 8 and Mr. Mishra, learned Senior Advocate for the petitioners.
In fact, the petitioners filed the CMP assailing the correctness of the impugned judgment dated 13th January, 2025 in F.A.O No. 32 of 2024 by learned District Judge, Kendrapara and also to set aside the order in I.A. No.58 of 2014 arising out of the suit in C.S. No.114 of 2011 on the grounds stated. This Court by order dated 13th February, 2025 disposed of the C.M.P. modifying the impugned decision in F.A.O. No. 32 of 2024 allowing the petitioners to conclude the construction of the half built house situate over the suit schedule property, title over which, shall be subject to the result in the suit. Such disposal was at the stage of admission in presence of opposite party No.4 without any notices issued to opposite party Nos.1 to 3 and 8 and other opposite parties. By alleging that the source of title claimed in favour of petitioner No.1 represented by petitioner No.2 as a Marfatdar on the strength of a gift deed is a fraudulent one, hence, the same is under challenge in the suit and in such view of the matter, the submission of Mr. Dash, learned counsel for opposite party Nos.1 to 3 and 8 is that both the sides should be directed to maintain status quo in respect of the suit schedule property, since the order in F.A.O. No. 32 of 2024 stands modified in C.M.P. No.188 of 2025, the petitioners taking advantage of the same have commenced construction over the case land, which should not be permitted as the opposite parties have advanced a rival claim and title over the same, a question, which is to be adjudicated upon in the suit. Mr. Dash, learned counsel submits that the decision of the learned District Judge, Kendrapara in F.A.O. No.32 of 2024 should be restored with the order of C.M.P. No.188 of 2025 being recalled as the same is necessary keeping in view the interest of the parties involved. The further contention is that the decision referred to from the side of the petitioners in K.M. Pratap Vrs. K.M. Gourish and another (2017) 11 SCC 103 is inapplicable to the present set of facts and nature of dispute inter se parties and therefore, having regard to the fact that the construction over the suit land is to commence in view of the order in C.M.P. No.188 of 2025, the same deserves to be recalled. A written note of submission is filed and received by the Court, referring to which, Mr. Dash, learned counsel would submit that any such further construction over the suit land should be avoided. While advancing such an argument, Mr. Dash, learned counsel refers to the decision in Evans Vrs. Bartlam (1937) A.C. 473 and of the Apex Court in Wander Limited Vrs. Antox India Private Limited 1990 (Supp.) SCC 727 to conclude that this Court could not have interfered with the judgment of learned District Judge, Kendrapara in F.A.O. No.32 of 2024 ignoring the settled principle of law regulating grant or refusal of injunction. Two more decisions have also been placed reliance on by Mr. Dash, learned counsel, which are, namely, S.P. Chengalvaraya Naidu Vrs. Jagannath (dead) and others (1993) Supp. 3 S.C.R. 422 and State of Kerala Vrs. Union of India (2024) 4 S.C.R 13.
On the other hand, Mr. Mishra, learned Senior Advocate appearing for the petitioners submits that there is no need for any recall of the Court’s order dated 13th February, 2025 in CMP No.188 of 2025 as such a course of action allowing the petitioners to conclude the construction keeping in view the decision in K.M. Pratap (supra) is perfectly justified and in accordance with law, since the same has been permitted without claiming any equity over the same in future. It is submitted that opposite party No.4 as a caveator contested the claim of the petitioners and the matter was disposed of on merit. It is contended by Mr. Mishra, learned Senior Advocate that opposite party No.1 to 3 and 8 are similarly situated like opposite party No.4 to challenge the claim of the petitioners on a common ground and therefore, the order dated 13th February, 2025 in CMP No.188 of 2025 should not be recalled as any such order would result in review. Referring to a decision of the Apex Court in Mohd. Hussain and others Vrs. Occhavlal and others (2008) 3 SCC 233, it is further contended that the order in the CMP neither to affect nor prejudice opposite party Nos.1 to 3 and 8 and the petitioners would rather suffer substantial loss, if they are not allowed to complete the partially constructed building, all the more when, the plea of the opposite parties shall be subject to final verification during trial upon receiving evidence from both the sides. The contention is that this Court rightly, therefore, allowed the construction to take place modifying the order in F.A.O No.32 of 2024, hence, the same should not be recalled.
The Court of first instance directed the parties to maintain status quo in respect of the suit schedule property and it has been followed by the decision of the learned District Judge in F.A.O No.32 of 2024, wherein, it has been concluded that the petitioner to be in possession of the suit land but restrained them from raising any construction thereon or changing, altering its nature and character in any manner, till disposal of the suit in C.S. No.114 of 2011, even though having taken cognizance of the fact that the construction has been made over the same to a considerable extent. The bone of contention between the parties is with regard to the registered gift deed executed in favour of petitioner No.1, a deity represented by the Marfatdar, namely, petitioner No.2. It is alleged by the opposite parties that the said deed was not executed by their predecessor, namely, Laxmi Dei. The claim of the petitioners is that petitioner No.2 and opposite party No.2 are the descendants of the common ancestor and as the successor of one Jagabandhu, said Laxmi Dei allegedly executed the gift deed dated 5th July, 1997, whereafter, the suit land was mutated in the name of petitioner No.1. On the other hand, the opposite parties claimed that the vendor of petitioner No.1 is a granddaughter of one Daitary Das. The claim is that said Laxmi Dei is only the legal heir of late Jagabandhu, the recorded co-owner in respect of suit Khata No.379 and she died unmarried in 1998. In fact, learned Court below reached at a conclusion that the materials on record lend support to the case of petitioners to the effect that Laxmi Dei, who is projected as the donor of the suit land in favour of petitioner No.1 died in the year, 1998 but still held that it would be too early to jump to any such conclusion either way as the same requires factual determination, which is possible at the time of conclusion of trial and at the same time found the alleged gift deed executed in 1997 and mutated in the name of petitioner No.1. Though the deed is claimed by the opposite parties to have been executed through a fictitious person, it is also concluded by learned Court below that such a claim about a fraudulent gift deed to have been managed does not appeal to conscience for reason that had there been any such intent, petitioner No.2 would have recorded the suit land and settled it with him instead of petitioner No.1, but as an abundant caution, also held that the dispute needs determination of facts in course of hearing of the suit concluding that the petitioners to be in physical possession of the same. Under such circumstances, having regard to the nature of dispute, which revolves around the alleged gift deed executed in favour of petitioner No.1 claims to be genuine and denied by the opposite parties alleging it to be a fraudulent one and in view of the fact that substantial construction having already taken place in the meantime and it has been carried out by petitioner No.2 as the Marfatdar of the deity, the Court reached at a conclusion that further construction should be allowed and title over which is to be determined at the end with a rider that the petitioners shall not claim equity over the same later on due to the fact that the loss would be extensive for the petitioners and not to the other side, whose claim over the suit land would be depending on the final result in the suit on the question of title.
The decision in K.M. Pratap (supra) is sought to be distinguished by Mr. Dash, learned counsel for opposite party Nos.1 to 3 and 8. No doubt, the suit therein was for partition and shares of the respective parties had not been demarcated and construction of a structure over the disputed property was allowed to be carried out at the risk of the party making it but with a condition that no third party interest shall be created over the same with such other conditions including the one that if ultimately the property does not fall in the share of the respondents, no equity in respect of any such construction shall be claimed by them and instead shall remove the entire construction at their own cost. This Court is not inclined to vary the decision and to substitute the order of status quo for the reason that the RoR stands in the name of petitioner No.1 and the construction has been undertaken over the suit land at the instance of petitioner No.2 being the Marfatdar and as it is revealed from the order in F.A.O. No.32 of 2024, such construction to have progressed to a considerable extent. Having regard to the fact that the gift deed is of the year, 1997 and the same to be a registered one purportedly executed in favour of petitioner No.1 by the donor, namely, Laxmi Dei, whose line of succession and status is in question and in the meantime, the suit land being in the possession of the petitioners and them having made the construction, which has reached almost up to the roof level of the ground floor, at this juncture, any such order of status quo is certainly to prejudice them and not the opposite parties. The inconvenience would be more for the petitioners than any of the opposite parties if the construction is stopped with an order of status quo. Not only that the damage and loss would be substantial for the petitioners, who are taking up the constructions at their own peril, fully knowing the imposed condition that they shall not claim equity over such construction in future.
The essential ingredients of Order 39 Rules 1 and 2 CPC, such as, a prima facie case, balance of convenience and irreparable loss and injury are to be duly taken cognizance of, while considering a plea for injunction. In view of the gift deed in favour of petitioner No.1 and possession, as has been found by learned Courts below in F.A.O. No.32 of 2024, a prima facie case is in favour of the petitioners and for the fact that petitioner No.1 to be the owner of the suit land having been issued with the mutation RoR. Furthermore, the inconvenience would be more for the petitioners, if they are prevented from making construction besides the loss and damage, in case status quo is allowed to remain. Though the decision in Evans (supra) is referred to by Mr. Dash, learned counsel for opposite party Nos.1 to 2 and 8, there is no quarrel over the legal position with regard to the ratio decided therein that a Court in appeal is not to lightly interfere with the discretion of an inferior Court, unless such exercise of discretion is grossly erroneous. In the present case, the Trial Court directed the parties to maintain status quo and it was modified by learned District Judge, Kendrapara in F.A.O. No. 32 of 2024 with a restriction vis-à-vis any such construction to be taken up over the suit land. If learned Court below reached at a conclusion that the construction of the suit land is to a considerable extent and the petitioners do have a prima facie case to make such construction, the question is, whether, it was justified to prevent them from raising the construction with a conclusion that it would change the nature and character of the subject involved. Law is rather well settled that any such construction, if it has already undertaken and progressed extensively, the same should be allowed to complete pending decision in the suit as the party making it having invested is likely to suffer immensely besides the pecuniary loss and damage on account of any such order of injunction.
Considering the likely prejudice to be caused to a party, the Apex Court in K.M. Pratap (Supra) in a suit for partition allowed the construction to be completed with certain restrictions imposed like not to create 3rd party interest and to use it without express permission of the Court etc. In the present set of facts and though the title of the suit land is claimed by the opposite parties denying any such gift deed to have been executed in favour of petitioner No.1, which is of the year,1997 and over the suit land, there is already a construction having progressed to a considerable extent and the same has not been denied by any of the opposite parties, rather, supported by a photograph produced by Mr. Dash, learned counsel for opposite party Nos.1 to 3 and 8 in course of hearing, the Court, regard being had to the settled position of law with reference to the citations relied upon, is of the humble view that the order in CMP No.188 of 2025 is not required to be recalled.
Accordingly, it is ordered
In the result, the I.A. stands dismissed.
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