Smt. Padmini Sekhar Deo and Others vs Pankajini Thakur and Another

P.K. Misra, J.—This appeal has been filed by the Plaintiffs challenging the order of the trial court rejecting their petition under Order 39, Rules 1 and 2. Code of Civil'' Procedure (in short, "C.P.C."). The present Appellants have filed Title Suit No. 70 of 1998 in respect of Hal Plot No. 16. Khata No. 503 measuring Ac. 0.205 decimals of land in village Talasankar, within Sundergarh Town.

The suit was filed for declaration of right, title and interest and for declaration that the sale deed executed by Defendant No. 3 in favor of Defendant No. 1 was null and void. It was also prayed that in case it is "found that the Plaintiffs are dispossessed before Or after filing of the suit, recovery of possession through Court be ordered. The Plaintiffs have further prayed for permanent injunction restraining Defendants f and 2 from entering upon disputed land. It is claimed in the suit that the disputed property belonged to the late husband of Plaintiff No. 1 and late father of Plaintiffs 2 and 3. It is further alleged that Defendant No. 3, the elder brother of father of Plaintiffs 1 and 2,. executed sale deed during minority of late Bharatendra Sekhar Deo, the predecessor-in interest of the Plaintiffs. It is further stated that since the property of a minor had been alienated without seeking permission of the Court, the same was illegal and void. It is alleged that the Plaintiffs in spite of the sale deed are still continuing in possession.

Defendants-opposite parties 1 and 2 had filed counter to the application under Order 39, Rules 1 and 2, Civil Procedure Code. and had contended that the property had been sold to them by Defendant No. 3 as Karta of the joint family for legal necessity and as such the same was bidding. It was further contended that Defendants 1 and 2 are in possession of the disputed property since the date of sale, that is to say, since 1971.

The trial court found that there was no prima facie case in favor of the Plaintiffs, inasmuch as, the alienation which had taken place in 1971 had not been challenged for a long period. The trial court further held that since there was no prima facie case in "favor of the Plaintiffs, there was no necessity for discussing the questions of irreparable loss and balance of convenience.

In this appeal, the learned Counsel for the Plaintiff Appellants submitted that the finding of the trial court that there was no prima facie case in favor of the Plaintiffs cannot be accepted. After going through the order passed by the trial court, I tend to agree with the contention of the Appellants. For establishing a prima facie case, it is not necessary for the Plaintiff to prove the case to the hilt. The law is well settled that the court is only required to find out a prima facie case and not that question of title has to be established by the Plaintiffs at that Stage. On going through the allegations contained in the plaint, at this stage, it cannot be said that no prima facie case has been established by the Plaintiffs.

However, as held in the decision reported in A.I. Rule 1993 SC 276 Dalpat Kumar and Anr. v. Prahlad Singh and Ors. mere existence of prima facie case would not entitle a Plaintiff to obtain an order of injunction. The court has to consider the question of irreparable loss and balance of convenience. From the submissions made by the counsels, it appears that some construction has already been raised on the disputed plot. It is, of course, true that the learned Counsels for the Appellants submits that construction has been forcibly made during the pendency of the suit while the petition under Order 39, Rules 1 and 2, Civil Procedure Code. was being considered by the trial court. It has further been submitted by the counsel for the Appellants that even after an interim order was passed by this Court restraining the Respondents from making any construction on the disputed land, the height of the construction has been raised up to roof level in violation of the order passed by this Court.. The learned Counsel appearing on behalf of the Respondents, on the other hand, submitted that, in fact, the construction has been completed up to roof level before any order of injunction was passed by this Court. Since no petition for violation of Court''s order has been filed, it is not necessary for me to decide as to whether the construction up to roof level has been made in violation of the order of this Court. However, the fact remains that construction up to roof level has already been made. The sale deed is of the year 1971. In this background, it cannot be said that balance of convenience is in favor of the Plaintiffs. As a matter of fact stopping the Defendants from completing the house may cause irreparable loss to the Defendants.

In course of hearing of the appeal the learned Counsel for the Respondents submitted that in case the Plaintiffs ultimately succeed, the'' Defendants would give delivery of vacant possession of the land or the land along with the structure, thereon, as per the wishes of the Plaintiffs. In other words, if the Plaintiffs after being successful in the suit want delivery of possession of the land along with the structure, such delivery -shall be affected without the Defendants claiming any equity towards the cost of construction. Similarly, it is stated that in case the Plaintiffs want delivery of possession of vacant land, the Defendants would give vacant delivery of possession after demolishing the structure for which again, no equity would be claimed. In view of such.statement of counsel for the Respondents, it cannot be said that the balance of convenience is with the Plaintiffs or that any irreparable loss would be caused to the Plaintiffs in case injunction is not granted. However, to make the position clear, it is directed that the Respondents, that is to say Defendants 1 and 2 shall give a written undertaking before the trial court that they will give vacant delivery of possession.of the land or land along with the structure to the Plaintiffs in the event of eventual success of the Plaintiff in the suit as, per the wishes of the Plaintiffs without claiming any equity. If such an undertaking is given within a period of three weeks from today, the Respondents would be permitted to complete the structure on the disputed land thereafter and till such undertaking is given, the order of injunction passed by this Court on 25-9-1998 shall continue. It is also made clear that the disputed property shall not be alienated by the Defendants to any person and if the properly is to be leased out to anybody else, no right can be,claimed by such lessee and a condition to that effect shall be incorporated in the lease agreement.

Keeping in view the nature of the dispute, it is necessary that the suit itself should be disposed of as expeditiously as possible. There is some dispute as to whether written statement has been filed or not. If written statement has not been filed, the same should be filed by all the Defendants by 30th of November, 1998, and no extension of time shall be granted. The suit should be disposed of as expeditiously as possible preferably before the summer vacation of 1999. The observations made in this appeal shall not prejudice the trial court in any manner at the time of disposal of the suit which should be disposed of in accordance with law on the basis of materials on record. Similarly, the observations made in this appeal shall not also prejudice the disposal of any Miscellaneous Appeal arising out of Title Suit No. 70 of 1998 in respect of any order passed in that suit relating to any other plot in dispute between the same parties.

Subject to the above observations and directions this Misc. Appeal is disposed of. There is no order as to costs.

Misc. appeal disposed of.