Advocates:
['ASHUTOSH MOHANTA', '', 'B DAS', 'M/S AMITPRASAD BOSE', 'V KAR', 'D J SAHOO', 'S SWAIN']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 881 OF 2022

Jayanti Mohanta and others

....

Petitioners

Mr. Ashutosh Mohanta, Advocate

-versus-

Siba Charan Mohanta and another

&.

Opp. Parties

Mr. Amit Prasad Bose, Advocate

(For Opp. Party Nos.1 and 2)

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

18.11.2022

3.

1.

This matter is taken up through hybrid mode.

2.

The Petitioners in this CMP seek to assail the order dated

5^th July, 2022 passed by learned Senior Civil Judge, Baripada in

C.S. No.109 of 2021, whereby an application under Order VI Rule

17 C.P.C. filed by the Plaintiffs-Petitioners has been partly

allowed.

3.

Mr. Mohanta, learned counsel for the Petitioners submits

that C.S. No.109 of 2021 has been filed for partition of joint

family property. During pendency of the suit, the Defendant No.1

sold out a portion of the land to Saroj Kumar Sahu and Nabanita

Dwari vide registered sale dated 27^th December, 2021. Since the

alienation of the suit property was made during pendency of the

suit, the Petitioners filed an application under Order VI Rule 17

C.P.C. to incorporate the pleadings with regard to alienation of the

property and also to declare the sale deed dated 27^th December,

2021 to be null and void. Learned trial Court, while allowing the

pleadings with regard to alienation of the suit property, refused to

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the prayer for amendment with regard to the relief sought for in

the suit.

3.1.

Mr. Mohanta, learned counsel for the Petitioners further

submits that the suit property being the joint family property, the

Defendant No.1 could not have alienated a definite portion of the

land in view of Section 44 of the Transfer of Property Act, 1882

(for short 8the Act9). Thus, the sale deed alienating definite

portions of the joint family property is required to be declared null

and void. Learned trial Court without appreciating this material

aspect passed the impugned order refusing to amend the prayer of

the plaint. Hence, this CMP has been filed.

3.2

Mr. Mohanta, learned counsel for the Petitioners relying

upon the decision in the case of Sukadev Jena 3v- Kuna Rout and

others, reported in 104 (2007) CLT 756, submits that lis pendense

purchasers are proper parties to the suit and a co-sharer cannot

alienate a specific portion of the joint family property. As such,

the prayer for amendment of the plaint should have been allowed.

4.

Mr. Bose, learned counsel for Opposite Party Nos.1 and 2

submits that the alienation being made during pendency of the

suit, it will be governed by the principles of lis pendense as

provided under Section 52 of the Act. Hence, there is no

requirement to amend the plaint incorporating the prayer to

declare the sale deed to be null and void. He further submits that

after the alienation is made, the Plaintiffs had filed an application

under Order 1 Rule 10 C.P.C. to implead lis pendense purchasers

as parties to the suit, which was rejected and remained

unchallenged. He further submits that lis pendense purchasers are

only entitled to enjoy the propertyto the extent allotted to their

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vendor. Thus, learned trial Court has committed no error in

rejecting the application under Order VI Rule 17 C.P.C.

5.

At this stage, Mr. Mohanta, learned counsel for the

Petitioners submits that the observation basing upon which the

application for amendment is rejected is not sustainable.

6.

Considering the submissions made by learned counsel for

the parties and on perusal of the record, this Court finds that

learned trial Court while rejecting the prayer to amend the relief

sought for in the suit observed that since a party c