ORISSA HIGH COURT: CUTTACK. F.A.O. N0. 358 OF 2009 From an order dated 25.7.2009 passed by Shri B.R. Pattnaik, learned Civil Judge (Senior Division), Rairangpur in I.A. No. 16 of 2007 arising out of C.S. No. 62 of 2007. ----------- Kartik Chandra Sahu and others …… Appellants -Versus- Santilata Sahu and others …… Respondents For Appellants : M/s. S.D. Das, H.S.Satapathy, N.Bisoi, M.Panda, D.Mohanty, A.N. Sahu & M.M.Swain. For Respondents: M/s. G.Mukherjee, P.Mukherjee, A.C.Panda, S.Patra & S.Mukherjee. (For respondents 1 to 3 ) Mr. D.R.Bhokta (For respondent no.4) ------------------------------------ Date of Judgment: 17.12.2011 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. Das, J. This FAO has been filed by the appellants against the order dated 25.07.2009 passed in I.A. No.16 of 2007 arising out of C.S. No.62 of 2007 by the learned Civil Judge (Sr. Division), Rairangpur. 2. C.S. No.62 of 2007 has been filed by the appellants against the respondents as defendants along with one Sulochana Dei as proforma defendant for partition of the suit Schedules “B” and “C” properties claiming 3/7th share. 3. Plaintiffs averred in the plaint that they and the defendants are closely related as per the genealogy given in the schedule A of the plaint, which shows that one Laxman Sahu is the common ancestor of the parties, who died on 04.03.1992 leaving behind his widow Durga @ Durgamani Sahu since deceased and Sulochana Dei, the proforma defendant no.5. From out of the wedlock of Laxman with his first wife Durga, four daughters were born, who are defendant nos.1 to 4 respectively. The plaintiff nos.1 and 2 are the sons and plaintiff no.3 is the daughter born out of the wedlock of Laxman and his second wife-Sulochana (defendant no.5). Laxman and Shiba were two brothers being sons of one Shyamlal Sahu. While living jointly, though they acquired huge landed properties in Mouza- Badra and Kaduani in their names, they also acquired land in Mouza- Ichinda in the name of their wives out of their own income to avoid ceiling. The said acquisitions were made out of the personal income of both the brothers and for the benefit of their successors-in- interest including the plaintiffs and the defendants. Later on, both the brothers separated their properties. Accordingly, lands purchased in the names of their wives have also been recorded in their names separately. The land recorded in the name of the first wife Durga was described in Schedule “C” of the plaint and the land allotted to Laxman has been mentioned in Schedule “B” of the plaint. The plaintiffs pleaded that the land purchased in the name of the first wife Durga recorded in her name was purchased by Laxman Benami in 2 her name. After the death of Durga, the plaintiffs as well as the defendants are legally entitled to inherit 3/7th interest each in the suit properties mentioned in the Schedules “B” and “C” of the plaint. It was admitted in the plaint that the second wife-Sulochana was impleaded as defendant no.5 even though she does not have any interest in the suit land to avoid future trouble and for settlement of the dispute for all times to come. The respondents-defendants pleaded in their written statement that their mother-Durgamani was the legally married wife of Laxman and the plaintiffs are the illegitimate children of Laxman. Thus, the plaintiffs are not entitled to any share in the suit property. The defendants also denied the allegations of the plaintiffs that the property was purchased by Laxman Benami in the name of his first wife-Durgamani. 4. The plaintiffs filed I.A. No.16 of 2007 in the above suit seeking an order of injunction under Order-39, Rules-1 and 2, C.P.C. against the defendants restraining them from alienating any portion of the suit property. 5. The learned trial court upon hearing the said application by the impugned order came to the conclusion that the plaintiffs having not made out a prima facie case declined to grant the order of injunction as prayed for, for which the plaintiffs have filed the present appeal. 6. During pendency of this appeal, an order was passed on 12.08.2009 directing the parties to maintain status quo over the 3 property. The respondents have filed a Misc. Case to vacate the said order as well as another Misc. Case seeking permission to sell a portion of the disputed property to meet the expenses of treatment of the husband of the defendant-respondent no.1, who is seriously ill of acute cardiac problem and it has been opined by the Doctor that he has to undergo an open heart surgery. 7. The fact as to whether the lands standing in the name of the first wife of Late Laxman was his self acquired property or Laxman purchased the same in the name of his first wife as a benamidar is to be gone into in the trial of the suit. It appears that in the event ultimately it would be held that the suit property was purchased by Late Laxman Benami in the name of his first wife Durgamani and the said property actually belongs to Late Laxman, the plaintiffs though admitted to be the illegitimate children of Late Laxman would be entitled toa share in the same in accordance with law. However, if it is ultimately found that the property was purchased in the name of the first wife of late Laxman, i.e., Durga, from the Stridhan of late Durga, the plaintiffs cannot have any claim thereon. 8. In view of the above, this Court finds that a prima facie case was made out by the plaintiffs and the suit being one for partition, the balance of convenience also was in favour of granting an order of injunction restraining the defendants from alienating any portion of the suit property as otherwise the same would amount to 4 cause irreparable injury to the plaintiffs by giving rise to multiplicity of proceedings. 9. However, considering the averments made by the defendant-respondents with regard to requirement of money, as it is found that the defendants will have 4/7 interest in the disputed property in the event of the plaintiffs being found to be entitled to share in the property as illegitimate children of Late Laxman, while setting aside the impugned order, it is directed that the plaintiffs will be entitled to sell any portion of the suit land to an extent which shall not exceed 4/7th of the suit property. However, for the above purpose, the respondents - defendants will file an undertaking before the learned court below that in the event they loose in the Civil Suit, they will not claim any equity on account of any sale of the disputed property. On no account, the defendants shall alienate the property exceeding their share 4/7th of the suit property. In the event the defendants want to sell the property to any outsider for a particular amount of consideration, they shall offer the said land first to the plaintiffs and in the event the plaintiffs agree to purchase the said land by payment of the same consideration amount, which is offered by a third party purchaser, the defendants shall sale the land to the plaintiffs. For the above purpose, in the event, the defendants want to sell any portion of the disputed land under their possession, as directed above, they shall make an application before the learned trial court giving particulars of the amount of consideration to be passed 5 under such sale deed and declaring the name of the purchaser. On such application being filed, if the plaintiffs or any of them are/is willing to offer the same amount fixed as consideration, the defendants shall sale the land to the plaintiffs or any of them. This order shall continue till disposal of the suit. 10. With the aforesaid direction, the FAO is disposed of, but in the circumstances without cost. …………………… M.M. Das, J. Orissa High Court, Cuttack. December 17th, 2011/Himansu 6 7