KAMALA DASH Vs. RAMA PRATAP KHERIA

JUDGEMENT

(1.) THIS appeal is in challenge of the order of dismissal of I.A. No. 246 of 2013 passed by the learned Civil Judge (Senior Division), Jajpur on 04.11.2013. The Appellants are the plaintiffs -petitioners before the learned lower court. They have filed C.S. (I) No. 371 of 2013 seeking partition of the suit land along with other reliefs. Their case is that the suit land which stood recorded in the name of late Udayanath Dash in the consolidation R.O.R. published in 1984 is the ancestral property of the plaintiffs and other successors -in -interest of late Udayanath Dash. The plaintiffs have 8 annas interest in the suit land. But the other successors -in -interest of Udayanath Dash have alienated the entire of the suit land in favour of the defendant -Rama Pratap Kheria under registered sale deed No. 1166 dated 11.06.2012. A specific stand taken by the plaintiffs -Appellants is that the said Udayanath Dash died in the year 1993 -94 leaving behind his only son Biswanath Dash who died in 2004 and only daughter Mukta Dash, who died in the year 2006. Biswanath Dash died leaving behind his widow, two sons and two daughters, who are still alive. There is no partition of the joint family properties left behind by Udayanath Dash, who died intestate. Without there being any partition the successors -in -interest of late Biswanath Dash have sold the entire suit land to the defendant -Respondent falsely stating in the sale deed that Udayanath Dash had no legal heirs other than the vendors under the impugned sale deed. It is claimed that since the Appellant have got 50% share in the suit land, the sale transaction is void to the extent of their share.

(2.) IT is further alleged that having obtained the sale deed the defendant -Respondent is trying to raise boundary wall over the suit land and to convert the nature and character of the land by filling sand and soil. Hence, the petition for interim injunction.

(3.) LEARNED lower court has dismissed the I.A. mostly on the ground that the plaintiffs -petitioners have not filed a single scrap of paper showing that Mukta Dash, their predecessor -in -interest, is the daughter of Udayanath Dash. That apart, it is observed, the legal heir certificate relied on by the defendant -opposite party does not reflect them as legal heirs of Udayanath Dash. It is also observed by the learned lower court that since the original relief of partition cannot be granted in view of the specific bar under Section 34 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (for short, the Act of 1972), no interim relief can be granted. It is also observed that plaintiffs -petitioners have filed no document to show that they are in possession of the suit land or any part thereof.