RAJKUMAR BISWAL Vs. SANTILATA BISWAL

JUDGEMENT

(1.) CHALLENGING the order dated 2.2.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Interim Application No.386 of 2008 in dismissing the interim application filed under Order 39 Rules 1 and 2 of the Civil Procedure Code, this appeal has been filed by the plaintiff -appellant.

(2.) THE brief facts of the case are as follows : The present appellant as plaintiff filed Civil Suit No.375 of 2007 for partition. He pleaded that he is the adopted son of one Kailash Chandra Biswal. The said adoption took place in the year 1999. From the date of adoption, he was brought up by said Kailash and his wife Santilata Biswal, the present respondent No.1, as son. His adoption was not disputed during the life -time of Kailash who died suffering from cancer in the year 2001. Santilata has got five sisters. The second sister, namely, Raji married to one Birabara Jena of Mohajanpur. On the ill -advice, said Birabara attempted to dispose of the property by utilizing the power of attorney. In order to alienate the suit property and deprive the plaintiff, they took such steps. Hence, the plaintiff filed the suit for partition and setting aside the power of attorney as illegal and void.

(3.) RESPONDENT No.2 filed a separate objection supporting the plea of respondent No.1. The Court below, considering the pleadings and the materials available on record, came to the finding that the suit land is possessed by respondent No.1 and she has executed a registered power of attorney in favour of respondent No.2. Plaintiff -appellant was not able to prove that he had a prima facie case. The balance of convenience also did not lean in favour of the plaintiff appellant. In the absence of prima facie case in favour of the plaintiff appellant, if injunction was not granted he would not suffer irreparable loss. Therefore, the Court below dismissed the said interim application.