BISHNUPRIYA PAIKARAY & ANR Vs. RASHMIREKHA PAIKARAY

JUDGEMENT

(1.) This appeal has been filed against an order passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No.304 of 2014 arising out of C.S. No.6727 of 2014 in the matter of petition under section 39 Rules 1 and 2 of the Code of Civil Procedure. By the said order the court below has passed an order directing the parties not to change the nature and character of the suit properties except those under schedule- D which are movables and maintain status quo in respect of those immovable properties described in other schedules.

(2.) Facts necessary for disposal of this appeal are as under:- The respondent as the plaintiff filed the suit for partition of the properties described in Schedule-A, A-1, A-2, A-3, A-3(i), B, C and D properties. She has claimed 1/3rd sharer in all those properties. The prayer is also for rendition of the account towards income and expenditure of joint family properties since the time death of Rabindra Kumar Paikaray, the husband of appellant no.1 and father of the appellant no.2 and respondent no.2. Rabindra Kumar Paikaray died in the year 2007 leaving behind his widow and two daughters as stated above. The properties described in schedule-A, A-1, A-2, A-3 and A-3(i) are standing recorded in his name. The property under schedule-B standing in the name of appellant no.2 is said to have been acquired by Rabindra Paikray during his life time. Similarly schedule-C lands standing recorded in the name of appellant no.2 are said to have been purchased from out of the joint family income. As already stated the schedule-D describes movables of the family. It has been pleaded in the plaint that the appellants being in control of the properties involved in the suit are misappropriating rent of around Rs. .1,99,000/- per month, which is derived from out of those properties besides agricultural income of a sum of Rs. 1,30,000/- per month, which is coming as income from the user of these properties. It is further stated that a sum of Rs. 2,02,33,600/- received on account of land acquisition compensation from the year 2010 to 2014 has also been misappropriated by them and the accounts towards the same has not been rendered.

(3.) The appellants as the defendants deny the fact that Schedule-B, C and D properties have been acquired from joint family funds. It is stated that the plaintiff, who got married in the year 2009 was paid dowry and thus the compensation received on account of land acquisition was spent for that. It is stated that they are maintaining themselves from out of the income that they are receiving from flats by letting out those to different persons. Specifically, it is stated that Rabindra Kmar Paikaray had incurred family loan and to meet the expenses in his funeral ceremony loan to the tune of Rs. 30,00,000/- have been taken from the bank over and above some hand loans. It is stated that schedule B properties are the absolute properties of defendant no.1 whereas schedule C property is the absolute property of defendant no.2. Thus, it is stated that the plaintiff cannot lay any claim in respect of those properties in view of the provision of section 4 of the Benami Transaction (Protection) Act 1988. Schedule B is said to be the self acquired properties and absolute property of defendant no.1 and that schedule C is the absolute property of defendant no.2. They have denied the plaint averments with regard to the income from cultivable land through bhag tenants. However, they admit the receipt of Rs. 23,000/- per month as against the plaint assertions of Rs. 44,000/- per month towards the money earned through schedule A/1 properties. Similarly, it is stated that Rs. 18,000/- per month is earned from Schedule B property and Rs. 60,000/- is being earned per month from schedule A-3(i) properties against the plaint allegation of Rs. 50,000/- and Rs. 1,00,000/- respectively.