RAJANIBALA SAHOO Vs. MANJU BISWAL

JUDGEMENT

(1.) Being aggrieved by the order dated 10.01.2012 passed by learned Civil Judge (Senior Division), Jajpur in I.A. No.297 of 2011 arising out of C.S.No.510 of 2011 allowing the I.A., the appellant, who is the sole opposite party in the I.A. and defendant No.6 in the suit, has preferred this appeal to have the impugned order restraining her from making any construction or changing the nature and character of the suit land till disposal of the suit set aside.

(2.) Respondent Nos.1 to 6 are the plaintiffs-petitioners before the lower Court. They have filed the suit claiming that the plaint Schedule 'B' land measuring Ac0.75 decimals is the undivided ancestral homestead property of their family and though there has been severance of joint status of the family, there has been no partition of the suit land as yet. It is contended by them that on 12.08.2002 an unregistered deed of partition was created by some members of the joint family showing the suit property to have been partitioned amongst the co-sharers and then, on the same day, one of the co-sharers late Jairam Biswal executed a sale deed alienating a specific portion of the suit land measuring Ac0.06 decimals of land in favour of another co-sharer, Laxmidhar Biswal (Defendant No.2). On the same day Jairam executed another sale deed alienating Ac0.11.03 decimals out of the suit land in favour of defendant Nos.8 and 9 who are strangers to the family. Out of his purchased land defendant No.2 sold Ac0.04 decimals to defendant No.7, a stranger to the family, by executing a Registered Sale Deed on 11.04.2011. Defendant No.7, in turn, sold his purchased land to the present appellant under Registered Sale Deed dated 14.09.2011. On the strength of that sale deed the appellant, it is alleged, is trying to intrude upon the suit land to raise construction of a house. It is the specific case of respondents-plaintiffs that the unregistered deed of partition is a fraudulent one. No one representing respondent-plaintiff Nos.1 to 5 is a signatory to the deed of partition. No part of the suit land has been allotted to the share of plaintiff-respondent Nos.1 to 5. So far plaintiff-respondent No.6 is concerned, it is contended that her signature on the unregistered partition deed was fraudulently obtained. Taking different grounds on the validity of the impugned partition deed dated 12.08.2002, the suit has been failed to declare the same to be void and inoperative and the sale deed executed by Jairam to Laxmidhar (Defendant No.2) and subsequent sale deeds executed by defendant No.2 in favour of defendant No.7 and by defendant No.7 in favour of the Appellant may also be declared illegal and void.

(3.) The appellant in her counter has contended that having purchased Ac.0.04 decimals of land on payment of Rs.2,02,000/- she has got delivery of possession of her purchased land. She claims that the entire joint family properties were already partitioned amicably amongst the different branches of the joint family prior to 12.08.2002. The unregistered deed dated 12.08.2002 signed by different branches of the joint family is a deed of acknowledgement of the earlier partition. The partition has been acted upon and the plaintiffs have never objected to it. Basing on the partition Jairam executed one sale deed on 12.08.2002 in favour of defendant No.2 and on the same day he executed another sale deed in favour of defendant No.8 and defendant No.9 who are strangers to the joint family. After such sale transactions the strangers have constructed separate building over their respective purchased land. Not only Jairam but also plaintiff-respondent No.6, who is a signatory to the impugned deed of partition, has sold Ac.0.07 decimals of land to one Annapurna Mohapatra vide Registered Sale Deed No.626 dated 20.04.2005 who has already constructed a building on her purchased land. It is the further case of the appellant that the plaintiffsrespondents 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 plaintiffrespondent 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 grand-mother of plaintiff-respondent Nos.2 to 4.