DOLAGOBINDA SAHOO Vs. PURUSOTTAM KANDOI

JUDGEMENT

(1.) IN this writ petition, challenge has been made to the order dated 15.8.2008 passed by the learned Ad hoc Addl.District, F.T.C. No. -II, Cuttack in FAO No.137 of 2007 setting aside the order of status quo passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack on 5.9.2007 under Order 39 Rules 1 and 2 of the Civil Procedure Code (in short, "the Code") in I.A. No.240 of 2007 arising out of C.S. No.366 of 2005.

(2.) THE facts of the case, as narrated in the application, are as follows : The petitioner as plaintiff instituted C.S. No.366 of 2005 for declaration that the defendants have not derived any right, title and interest over the suit schedule property by virtue of the alleged sale deed dated 11.3.1983 and for permanent injunction against the defendants restraining them from interfering with his peaceful possession over the suit land. It was pleaded by the plaintiff that he is the exclusive owner in possession of the suit schedule property which was allotted to him by virtue of the decree passed in Title Suit No.292 of 1977. One Chouthmal Kandoi was a business man of the locality and had good relation with the plaintiff. Sometimes he used to help the plaintiff in official work as the plaintiff is an illiterate person. Accordingly, Chouthmal Kandoi proposed the plaintiff to execute a power of attorney in his favour so that he would be able to look after the business of the plaintiff and in good faith the plaintiff executed the power of attorney in favour of Chouthmal Kandoi in the year 1983. The power of attorney was drafted in English, but the same was not read over and explained to the plaintiff before registration. Till 2005 plaintiff was in dark about the actual mischief played by Chouthmal Kandoi in respect of the power of attorney. Said Chouthmal Kandoi executed the said sale deed fraudulently. The said fact came to the knowledge of the plaintiff when defendant Nos. 4 to 6 disclosed about such a sale deed in their written statement filed in Title Suit No.498 of 2003. Plaintiff pleaded that he never executed the sale deed and the same was never acted upon and it is a sham document for want of consideration and delivery of possession. Hence the suit.

(3.) LEARNED Ad hoc Addl. District Judge, FTC No.II, Cuttack allowed the said FAO and set aside the order dated 5.9.2007 passed by the learned Civil Judge on the grounds that there is specific provision u/s 52 of the T.P. Act regarding the sale during pendency of the suit. Thus, there was no necessity of passing the order of status quo particularly in this matter as the facts and circumstances of the case demand. The plaintiff has sold four adjoining pieces of land and except the defendants other three vendees are residing over their purchased land by constructing their house and while plaintiff says that he is in possession, the defendants say that they are in possession by virtue of the sale deed dated 11.3.1983. In the facts and circumstances of the case when the plaintiff has failed to file any document to say that his power of attorney has managed to get the sale deed executed from him it is presumed that the plaintiff has failed to prove his prima facie case. Besides as there are remedies for sale during pendency of the suit, the order passed by the learned Civil Judge was set aside. Challenging the said order passed by the learned Ad hoc Addl.District Judge, FTC No.II, Cuttack, the plaintiff -petitioner has filed this writ petition.