SASMITA NAYAK Vs. DINESH CHANDRA PATTANAIK

JUDGEMENT

(1.) The plaintiff-appellant in this appeal calls in question the order dated 01.11.2014 passed by learned Additional Senior Civil Judge, Dhenkanal in I.A. No.53 of 2014 arising out of C.S. No.86 of 2014, thereby dismissing an application filed by the plaintiff under Order 39 Rules 1 and 2, read with Sec. 151 C.P.C.

(2.) The brief description of facts, relevant for proper adjudication of this case are as follows : The appellant as plaintiff filed C.S. No.86 of 2014, now pending in the Court of learned Additional Senior Civil Judge, Dhenkanal seeking a decree for specific performance of agreement for sale executed on 10.08.2000 by one Dinesh Chandra Pattanaik (the original defendant), through his Power of Attorney Holder, namely Swedesh Ranjan Pattnaik, in favour of the plaintiff. Plaintiff also prayed for a decree of permanent injunction, restraining the defendant from alienating the suit land to any other person except in favour of the plaintiff. It is contended in the plaint that as per the terms of said agreement, the plaintiff had paid a sum of Rs.20,00,000/ - to the Power of Attorney of the defendant on the date of execution of the agreement. Accordingly, the possession of the suit land was delivered to the plaintiff and she developed the same and made it fit to be used as homestead. To the misfortune of the plaintiff, the Power of Attorney Holder of the defendant expired on 02.02.2006. However, the plaintiff after reclamation of the suit land had approached the defendant to execute the sale deed by accepting the balance consideration amount of Rs. 10,50,000.00 to which the defendant turned a deaf ear. Hence, the suit has been filed. As the defendant attempted to alienate the suit property during pendency of the suit, the plaintiff filed I.A. No.53 of 2014 under Order 39 Rules 1 and 2 read with Sec. 151, CPC, with a prayer to restrain the defendant from alienating the suit property to any person other than the plaintiff and also not to evict the plaintiff from the suit property. The defendant filed his written statement along with show cause assailing the maintainability of the suit. It is further contended that the plaintiff had never possessed the suit land. There existed neither any agreement of sale between the plaintiff and Power of Attorney Holder of the defendant, nor was there any part performance of the contract, as alleged. The so-called unregistered agreement for sale of the year, 2005 was not legally enforceable in Court of law. The defendant also contended that the claim of the plaintiff was barred by limitation. The defendant also denied other contentions made in the plaint as well as in the I.A.

(3.) Taking into consideration the rival contentions of the parties, learned Civil Judge came to hold that there is no material on record to show that the plaintiff is in possession over the suit land. He further observed that alienation, if takes place during pendency of the suit would be governed by the doctrine of lis pendens under Sec. 52 of the Transfer of Property Act. As such, the plaintiff would not suffer any irreparable loss, if any interim order of injunction is not granted. He, accordingly, dismissed the I.A. as not maintainable vide his order dated 01.11.2014.