ARUNA KUMAR MOHANTY Vs. RITANJALI MOHANTY

JUDGEMENT

(1.) The Appellants, by filing this Appeal under Sec. -100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dtd. 4/8/2015 and 18/8/2015 respectively passed by the learned 2nd Additional District Judge, Khurda in R.F.A. No.37 of 2011. The predecessors-in-interest of these Appellants namely, Lachhaman Mohanty as the Plaintiff had filed the Civil Suit No.244 of 2006 in the Court of the learned Civil Judge (Senior Division), Khurda. The suit is for permanent injunction and mandatory injunction against the Respondent No.1 (Defendant No.1) from entering upon the suit property and creating any sort of disturbance in the peaceful possession of the Lachhaman (original Plaintiff) over the suit land and for mandatory injunction by way of eviction if the Respondent No.1 (Defendant No.1) takes the possession of the suit property during the pendency of the suit. The Trial Court having dismissed the suit, the said Lachhaman, the original Plaintiff being non-suited had carried the Appeal under Sec. -96 of the Code. During pendency of the First Appeal, Lachhaman having died, these Appellants came to be substituted in his place and they pursued the First Appeal. The First Appellate Court has dismissed the said Appeal and thereby, confirmed the judgment and decree passed by the Trial Court. Hence, the present Second Appeal is at the instance of the Appellants (substituted Plaintiffs).

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

(3.) Plaintiff's case is that the suit property measuring Ac.0.36 decimals from out of Ac.0.109 decimals on the middle portion of the land under Khata No.132 assigned with Plot No.484 in mouza Naragada forms a part and parcel of the dwelling house of the Plaintiff and Defendant No.3. The same being the homestead land is used as Bari for keeping paddy seeds, straw bundles and rest portion of it has been in use as the threshing floor since long. Further case of the Plaintiff is that there has been no division of the suit property of any point of time and it stands jointly recorded in the name of the Plaintiff, Defendant Nos.2 and 3. On 25/9/2006, when the Plaintiff was present, the Defendant No.1 who is a stranger to the family attempted to make entry upon the suit property by claiming her ownership over the same. The original Plaintiff then made inquiry and learnt that Defendant No.2 has executed a registered sale deed on 23/9/2006 in respect of the suit property in favour of Defendant No.1. Though that suit property is the dwelling house of the undivided family and as such it was not permissible to be sold by the Defendant No.2 that too without the consent of the Plaintiff and Defendant No.3, the sale deed has come into being. It is stated that the Plaintiff thereafter approached the Defendant No.2 to persuade Defendant No.1 to transfer the suit land in his favour on receipt of consideration amount. However, the Defendant No.2 took no interest in the matter. Thus, being left with no option, the Plaintiff instituted the suit to restrain Defendant No.1 who is a stranger to the family from having joint possession or common enjoyment of the suit property along with the Plaintiff and Defendant No.3 on the basis of said purchase of the undivided share of Defendant No.2 over the land.