ORISSA HIGH COURT
Raghubir Dash, J.
Rajanibala Sahoo —Appellant
versus
Manju Biswal and Ors. —Respondents
From the order dated 10.1.2012 passed by learned Civil judge (Senior Division), Jaipur in I.A. No.297 of 2011 arising out of C.S. No.510 of 2011 FAO No. 43 of 2012
Decided on 30.7.2014

IMPORTANT POINTS
1. Plaintiff not coming with clean hands and concealing material facts, is not entitled to equitable relief of injunction.
2. Strangers cannot be allowed intrusion into a family residence which is to be enjoyed by the members of the family alone.

Headnote:(a) Civil Procedure Code 1908—Order 3, Rules 1 & 2- Transfer of Property Act 1882, Section 44- Injunction against raising construction and changing nature of the suit property—Plaintiff/respondent filed suit for declaration to the effect that the partition deed as well as sale in favour of the appellants were void—One of the defendants was not even party to the partition deed and has sold part of the suit plot and the purchaser was not made party to the suit—The plaintiffs even did not challenge the sale deed executed by some of the co-sharers—The purchasers also raised construction of their houses and said fact was not disclosed in the plaint- Held the plaintiff had not approached the Court with clean hands and was not entitled to injunction—No prima facie case made out in favour of the plaintiff/respondents, nor balance of convenience in their favour—The order of the trial Court restraining the appellant from raising construction and changing nature of the suit property set aside. (Paras 7 & 8)

       (B) Transfer of Property Act 1882—Section 44—The property consisting several plots, no pleading that there was a dwelling house of undivided family—Section 44 of the Act prevents inclusion of strangers into the family residence which is to be enjoyed by members of the family alone. (Para 6)

       Facts of the case:

        Where the plaintiffs/respondents filed suit claiming that the property was undivided, ancestral property of their family and the same has not been partitioned and that unregistered deed of partition was created by some members of joint family and that the same was illegal and that the co-sharers executed sale deed of partition of the suit land in favour of another co-sharers and another sale deed in favour of some defendants who are strangers to the family. It is alleged that on the purchase land the appellants were trying to intrude upon the suit land and raising construction. Validity of the partition deed was challenged. However, the defendants contended that the property had already been partitioned amicably and the same has been acted upon and that on the basis of sale deed, the purchasers have constructed separate houses but was not made party.

       Findings of the Court:

        The Circumstances of the case disclosed that after the sale transactions the strangers have constructed separate buildings over their purchased land. It was the case of the appellant that the plaintiffs were well aware of the fact that there was a partition amongst the family members, but in order to score personal gain they have filed the suit challenging the sale deed executed in her favour while not challenging the sale transactions made in favour of defendant Nos. 8 and 9 and, suppressing the fact that plaintiff-respondent No. 6 out of her share, has sold a portion to one Annapurna Mohapatra who is not arrayed as a party to the suit. The appellant asserts that plaintiff-respondent No. 6 has clearly admitted in the sale deed executed by her that there was previous partition of the suit land. It is also the appellant’s case that the branch which plaintiff-respondent Nos. 1 to 5 belong to was represented by defendant No. 4 who is the mother-in-law of plaintiff-respondent No. 1 and paternal grandmother of plaintiff/respondent Nos. 2 to 4. It was found that some of the strangers were not impleaded. One of the plaintiffs made alienation of a piece of land but the sale transaction was not challenged. Therefore the plaintiff cannot be said to have come with clean hands because while challenging the alienation made in favour of the appellant she did not challenge the validity of the sale deed. Therefore, the plaintiff was not entitled to equitable relief of injunction. The Balance of convenience tilted in favour of the defendants/appellants and it is the appellant who shall suffer irreparable loss if injunction sought is granted against him. The Order of the Trial Court set aside.

       Result: Appeal allowed.