BASANTI PAIKARAY Vs. PRANANATH PAIKARAY AND ORS.

JUDGEMENT

(1.) Order dated 15.7.2011 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No. 457 of 2007 arising out of C.S. No. 565 of 2007 rejecting an application under Order 39 Rules 1 and 2 read with Sec. 151 of the C.P.C. filed by the plaintiff -appellant is under challenge in this appeal.

(2.) Shorn of details, C.S. No. 565 of 2007 has been filed by the plaintiff -appellant for a declaration that the registered deed of cancellation dated 31.3.1982, registered Power of Attorney dated 20.11.2002 and registered sale deed Nos. 334 and 335 dated 5.2.2003 are illegal and not binding on the plaintiff. The plaintiff further prayed for a declaration that the registered gift deed dated 19.3.1982 has been validly executed and registered gift deed Nos. 809 and 810 dated 15.4.1982 are fraudulently created. He also prayed for other consequential reliefs like permanent, prohibitory and mandatory injunction.

(3.) It is the case of the plaintiff that Ketaki Dei, the mother -in -law of the plaintiff, out of love and affection had executed a registered gift deed No. 583 dated 19.3.1982 in favour of the plaintiff in respect of Ac. 0.625 decimals of land, which was her (Ketaki's) self -acquired property. Said Ketaki also delivered possession thereof to the plaintiff. Subsequently, the defendant No. 1, who is none other than the brother -in -law (Diara) of the plaintiff, by practicing fraud created a registered deed of revocation of the aforesaid gift deed on 31.3.1982 without the knowledge of the plaintiff. Therefore, by misrepresentation, said defendant No. 2 took signatures of the plaintiff, her husband and father -in -law and created two registered gift deeds purportedly executed by Ketaki vide registered gift deed No. 809 dated 15.4.1982 donating Ac. 0.224 decimals of land in his favour and registered gift deed No. 810 dated 15.4.1982 donating Ac. 0.401 decimals of land in favour of the plaintiff, which was the subject matter of the gift deed dated 19.3.1982. After obtaining the Gift Deed No. 809 dated 15.4.1982, the defendant No. 1 executed a registered Power of Attorney on 20.4.2002 in favour of defendant No. 2. The defendant No. 2 by virtue of the said Power of Attorney executed two registered sale deeds i.e. RSD No. 334 dated 5.2.2003 for an area of Ac. 0.112 decimals in favour of defendant No. 3 and RSD No. 335 dated 5.2.2003 for an area of Ac. 0.112 decimals of land in favour of defendant No. 4. After the death of Ketaki on 21.7.1991 and her husband (father -in -law of the plaintiff) late Uchhab Paikray on 24.3.1993, the defendant No. 1 created disturbance in the peaceful possession of the plaintiff in respect of the land in question and building standing thereon. Thus, the plaintiff filed C.S. No. 466 of 2002 before the learned Civil Judge (Junior Division), Bhubaneswar for permanent injunction. In the said suit, the plaintiff filed I.A. No. 386 of 2006 in the said suit for temporary injunction and an order of status quo was passed therein. Subsequently, vide order dated 29.3.2007, the said order of status quo was vacated for which FAO No. 66 of 2007 has been filed, which is pending consideration. However, due to alienation of the suit land in favour of the defendant Nos. 3 and 4, they created disturbance in the peaceful possession of the plaintiff and building standing thereon for which the present suit has been filed for the aforesaid reliefs. Along with the plaint, the plaintiff filed I.A. No. 457 of 2007 under Order 39 Rules 1 and 2 C.P.C. praying, inter alia, to restrain the defendant Nos. 3 and 4 (respondent Nos. 3 and 4 herein) from entering upon the suit land or any part thereof and from alienating the suit property.