SHYAMSUNDAR MISHRA Vs. LOKANATH MISHRA

JUDGEMENT

(1.) Heard. This Civil Revision stands disposed of at the stage of admission after hearing learned counsel for both the parties.

(2.) Plaintiff in Title Suit No. 326 of 1989 of the Court of Addl. Civil Judge (Sr. Division), Puri is the petitioner whereas defendant No.4 in that suit is the opposite party. It is not disputed at the Bar that plaintiff has instituted the said suit, inter alia, praying for the relief of permanent injunction. His claim is based on a case of joint possession of the suit premises with his brother who is Defendant No.3. According to the further case of the plaintiff the suit premises is a part of the dwelling premises of the family and after suffering from leprosy the Defendant No. 3 having abandoned that premises and living outside and thereby leaving the whole area including the disputed area in the exclusive possession of the plaintiff and his family members. Defendant No.4 has purchased the disputed property from Defendant Nos. 1 and 2 and the said two defendants purchased the disputed property from Defendant No.3. According to the case advanced by Defendant No.4, Defendant No. 3 was the absolute owner of the premises inasmuch as the disputed property being a self- acquired property of the father of the plaintiff- and Defendant No.3, a patch of land comprising of the suit property was gifted away by the father in favour of Defendant No.3 and he transferred the same in favour of the defendant Nos. 1 and 2 by executing and registering a sale deed for consideration and therefore the claim of the plaintiff regarding joint possession with defendant No. 3 and thereafter exclusive possession as a dwelling premises after defendant No. 3 resided outside are far from truth and reality.

(3.) Being abreast of such facts and pleadings learned Civil Judge (Sr. Division!, Puri as per order passed on 7.1.1995 granted interim protection in favour of the plaintiff and passed order of temporary injunction on the ground that the disputed property is a part of homestead land. Learned Ad hoc Addl. District Judge (FTC-Ii;. Puri as the appellate Court in Misc. Appeal No.38/13 of 2002/95 has set aside that order of injunction as per the impugned judgment delivered on 23.1.2002. The appellate Court has stated that - "No doubt the suit plots, including Plot No. 332 are recorded as homestead land, but the portion alienated to defendant No.3, by way of a gift-deed, cannot be deemed to be a part of the undivided dwelling-house, as the same is deemed to have been separated from the dwelling-house, since 1969 when the gift-deed, was executed." The above quoted inference of the appellate Court may or may not be sustainable and that will depend on the evidence that will be adduced by the parties in course of hearing of the suit, but in the absence of positive proof in that respect the appellate Court could not, and should not have made such a conjecture to interfere with the order of the learned Civil Judge (Sr. Division). The parties shall be at issues on the said aspect during the trial of the suit and they may prefer to adduce relevant evidence in support of their respective stands and then only the aforesaid issue can be settled with due reference to the evidence on record. Under such circumstance, this Court finds that the appellate Court exercised the jurisdiction vested in him with material irregularity by presuming existence of certain facts which are yet to be established by either of the parties.