CHANDA Vs. RAMA CHANDRA SAHU AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of the order dated 22.9.2014 passed by the learned Civil Judge (Senior Division), Sundargarh in I.A. No. 76 of 2014 filed under Order 39 Rule 1 and 2 C.P.C. arising out C.S. No. 129 of 2010 refusing the prayer for temporary injunction.

(2.) THE plaintiff No. 2 is the appellant and defendant No. 5 is the contesting respondent No. 1 as well as plaintiff No. 1 is the proforma respondent in this appeal. In C.S. No. 129 of 2010, the plaintiffs prayed for a decree to declare different sale deeds executed in favour of defendant No. 5, who is respondent No. 1 in this appeal, as null and void, and not binding on the plaintiffs and permanent injunction restraining the defendant Nos. 35 to 42 from entering upon the suit land and for partition. The case of the plaintiffs, in short, is that one Bhuin was the common ancestor, who had two sons, namely, Chhedi Sahu and Baidu Sahu. The defendant Nos. 1 and 2 are sons of Nathu Sahu, who was the son of said Baidu Sahu. On the other hand, Chhedi Sahu had two sons, namely, Makhanlal and Babulal. The plaintiffs are daughters of said Babulal. It is stated that Chhedi and Nathu had separated in all respect prior to 1936 which is borne out from Sabik R.O.R. No. 34 of mouza Jharbeda and their respective possessions were recorded in the remarks column of said R.O.R. Out of Schedule 'A' land, defendant Nos. 1 and 2, who are both sons of Nathu Sahu, have got Ac. 9.45 decimals of land and rest of the land was in possession of Chhedi. It is further asserted that Nathu sold away the entire Ac. 9.45 decimals of land allotted to him on 14.01.1967 in favour of one Kishorilal Sahu by virtue of an unregistered sale deed and left the village and stayed at Sahajbahal. The R.O.R. in respect of Hal Khata No. 174 of mouza Jharbeda to an extent of Ac. 63.75 decimals of land was recorded in the names of Makhanlal Sahu and Babulal Sahu, who are both sons of Chhedi Sahu. Sriti Sahu, wife of Nathu Sahu, who had two sons, namely, Khageswar and Nageswar (defendant Nos. 1 and 2). Though Khageswar and Nageswar had no subsisting right over Hal Khata No. 174, taking advantage of recording of their names in the said Khata, they filed a collusive suit i.e. Title Suit No. 79 of 1997 before the court of learned Civil Judge (Senior Division), Sundargarh without impleading the plaintiffs as parties therein. The said suit ended in compromise allotting Ac. 4.22 decimals of land to each of them. The plaintiffs for the benefit of joint family sold an area of Ac. 3.70 decimals of land of the said Khata No. 174 and accordingly, Plot No. 2063 was not included in the suit. Taking advantage of the collusive decree passed in Title Suit No. 79 of 1997, several sale deeds were executed by the co -sharers without taking consent of the plaintiffs. Likewise defendant Nos. 1 and 2 also executed sale deeds in favour of defendant No. 5 without consent of the plaintiffs. Defendant No. 5 on the basis of the said sale deed filed a mutation case and got the land mutated in his name. When the defendant No. 5 tried to evict the plaintiffs from the suit land and stacked the materials to raise construction over the same, the plaintiffs filed the suit for the aforesaid reliefs.

(3.) DEFENDANT No. 5, who is the sole opposite party in the interim application, filed objection, inter alia, asserting that Hal Khata No. 174 of mouza Jharbeda was amicably partitioned between co -sharers and their respective shares were transferred in favour of strangers. Likewise, the plaintiffs sold Ac. 2.400 decimals of land out of said Khata No. 174 in favour of one Parsuram Sahu vide registered sale deed No. 549 of 2005 and the same was mutated in the name of said Parsuram Sahu vide Mutation Case No. 1022 of 2005. They also sold Ac. 3.220 decimals of land to OCL India Limited situated at Rajgangpur vide registered sale deed No. 267 of 2007 and the said land was mutated in favour of OCL vide Mutation Case No. 751 of 2007, but the said fact was suppressed by the plaintiffs both in the plaint as well as in the I.A. to mislead the court. It is further stated that Chhedi, son of Bhuin and Nathu son of Bothu @ Bodh Sahu are recorded tenants in respect of Sabik Khata No. 34 of mouza Jharbeda measuring an area of Ac. 60.070 decimals of land. Both of them have got half interest in the aforesaid holding and during current settlement, Hal Khata No. 174 of mouza Jharbeda was prepared in respect of Ac. 63.570 decimals of land constituting 36 plots. In both the settlements as stated above, plot -wise possession of the tenants (co -sharers) was recorded but after amicable settlement, the branch of Nathu Sahu was given land of Sahajbahal and a part of Plot No. 2035 to an extent of Ac. 4.220 decimals of land was allotted to Khageswar and Nageswar, who are both sons of Nathu, by virtue of the decree passed on 15.5.2004 in T.S. No. 79 of 1997. Thus, the rest Ac. 55.650 decimals of land remained in joint possession of legal heirs of Chhedi and defendant No. 5 purchased Ac. 0.220 decimals of land from the share of Khageswar and others out of Hal Plot No. 2035. It was also asserted that a petition bearing No. 3 of 2005 under Section 19(1)(c) of the O.L.R. Act was filed by some of the co -sharers for partition but due to lack of consent of the parties, the said case was dropped. However, there is severance of status of the parties and the co -sharers were possessing and dealing with separate parts of possession independently. Defendant No. 5 also furnished the details of land sold by different co -sharers in exercise of their rights over parcels of land they were possessing. Defendant No. 5 also questioned the maintainability of the suit by the married daughters of Babulal who died in the year, 1990. On the aforesaid assertion, defendant No. 5 -respondent prayed for dismissal of the I.A. as not maintainable.