Back
High Court Of Orissa
R. K. Dash
JAGADISH MOHANTY - Appellant
Versus
KSLIPRASAD SINGH - Respondent
MISC. APPEAL 730 Of 1997
Decided On : 10/06/1999
INJUNCTION - PARTITION SUIT - TRANSFER OF PROPERTY ACT, 1882, SECTION 44 - PARTITION ACT, 1893, SECTION 4 - STRANGER PURCHASER - POSSESSION OF UNDIVIDED SHARE IN DWELLING HOUSE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - PRIMA FACIE CASE - DISCRETION OF COURT.
Fact of the Case:
Plaintiffs filed a suit for partition of their 1/7th share in the suit property and for permanent injunction restraining the defendants from making any construction over the passage described in Schedule 'b' property. The trial court granted an injunction restraining defendant No. 1 from making any new construction. Defendant No. 1 appealed, contending that he was not encroaching on the plaintiffs' share and that the plaintiffs had waived their rights under Section 44 of the Transfer of Property Act and Section 4 of the Partition Act by allowing a stranger purchaser to possess a portion of the suit property without objection.
Finding of the Court:
The court held that the plaintiffs had a prima facie case, but that the balance of convenience and irreparable injury did not favor the grant of an injunction. The court found that defendant No. 1 was not encroaching on the plaintiffs' share and that the plaintiffs had waived their rights under Section 44 of the Transfer of Property Act and Section 4 of the Partition Act by allowing a stranger purchaser to possess a portion of the suit property without objection.
Issues: 1. Whether the plaintiffs had a prima facie case for injunction? 2. Whether the balance of convenience and irreparable injury favored the grant of an injunction? 3. Whether the plaintiffs had waived their rights under Section 44 of the Transfer of Property Act and Section 4 of the Partition Act?
Ratio Decidendi: 1. The court held that the plaintiffs had a prima facie case for injunction because they were owners of 1/7th share in the suit property and were entitled to maintain the suit for partition. 2. The court held that the balance of convenience and irreparable injury did not favor the grant of an injunction because there was no assertion in the plaintiffs' pleading that defendant No. 1 had been possessing more than what he had acquired by different sale deeds and had encroached upon the land in possession of the plaintiffs. 3. The court held that the plaintiffs had waived their rights under Section 44 of the Transfer of Property Act and Section 4 of the Partition Act by allowing a stranger purchaser to possess a portion of the suit property without objection.
Final Decision: The court allowed the appeal and set aside the injunction order passed against defendant No. 1.
R. K. DASH, J.
( 1 ) DEFENDANT No. 1 in Title Suit No. 251 of 1997 on the file of the civil Judge (Senior Division), Cuttack, is in appeal against the orders dated 16. 8. 1997 and 4. 10. 1997 passed in Misc. Case Nos. 277 of 1997 and 359 of 1997 respectively. In the former case, on the prayer of the plaintiffs, defendants 1 and 2 were restrained from making any construction over suit 'a' and 'b' schedule properties till final disposal of the suit. In the latter case the Court below rejected the prayer of defendant No. 1, to modify the aforesaid order of injunction. Aggrieved by the aforesaid two orders, defendant No. 1 has preferred these two Miscellaneous Appeals.
( 2 ) PLAINTIFFS are sons, widow and daughters of Late Styanarayan Singh. They have filed the aforesaid suit for partition of Schedule 'a' property and for permanent injunction restraining the defendants from changing the nature and character of Schedule 'b' property which is a common passage.
( 3 ) PLAINTIFFS case, in short, is thus : The suit property appertains to Sabik Plot No. 1241 measuring Ac. 0. 126 decimal under Sabik khata No. 416 of mouza Patapur popularly known as Gangamandir within the town of cuttack. Originally it belonged to Krushna prasad Singh. Predecessor of the plaintiffs, gopal Prasad Singh and Govind Prasad Singh. The aforesaid owners amicably divided the same by means of a registered deed of partition dated 16. 8. 1940 and in the said partition ac. 0. 118 dec. out of total area of Ac. 0. 126 decimal from southern side were allotted in the share of Krushna Prasad Singh. Since the date of partition. Krushna Prasad Singh possessed the same as his dwelling house, kitchen, latrine and a portion of it as a passage. Upon his death the same property devolved upon his only son Narendra Prasad Singh. Narendra was survived by six sons, namely, Laxminarayan, Satyanarayan, Badrinaranyan, kedarnarayan, Adityanarayan and Rabinararyan and only daughter Priyambada. After narendra's death his sons possessed the suit property jointly keeping a portion of it as a joint passage and subsequently due to inconvenience, they possessed separately without there being partition by metes and bounds. Laxminarayan sold his l/7th share to narasingh Charan Mohanty by registered sale deed dated 20. 8. 1970. Similarly, Badrinarayan and Rabinarayan sold their shares to Surendranath Dwivedy by registered sale deed dated 1. 8. 1970 who subsequently sold the same to defendant No. 1 in 1988. Kedarnarayan, adityanarayan and Priyambada transferred their respective shares jointly by a deed of sale deed dated 23. 3. 1981 to one Biswanath Pandit who subsequently sold the same to one sanatan Behera in 1992 and the latter transferred it to defendant No. 1. The plaintiffs as successor of Satyanarayan Singh have l/7th share in the suit property and because the defendants are influential persons in the locality and have started putting up new construction over a major portion of 'a' Schedule property by encroaching upon the common passage described in Schedule 'b' of the plaint, they have filed the present suit claiming the reliefs as aforesaid.
( 4 ) DEFENDANT No. 1 has filed the written statement contending, inter alia, that the suit property is no more joint, inasmuch as there was amicable partition among Late Narendra kumar Singh and his six sons and since then they were in separate possession of specific portion of the suit property alliotted to them in their share. Except Satyanarayan, others transferred their share of property by different registered sale deeds and in that view of the matter, the suit property was no more the dwelling house belonging to any joint family. The further case of defendant No. 1 is that his vendor Krusaka Trust purchased from laxminarayan, Badrinarayan and Rabinarayan their shares of property under different sale deeds in 1970 and got delivery of possession to the knowledge of plaintiffs' predecessor and later on, the aforesaid vendee sold the same with
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
