JAGADISH MOHANTY Vs. KSLIPRASAD SINGH

JUDGEMENT

(1.) Defendant No. 1 in Title Suit No. 251 of 1997 on the file of the Civil Judge (Senior Division), Cuttack, is in appeal against the orders dated 16.8.1997 and 4.10.1997 passed in Misc. Case Nos. 277 of 1997 and 359 of 1997 respectively. In the former case, on the prayer of the plaintiffs, defendants 1 and 2 were restrained from making any construction over suit 'A' and 'B' Schedule properties till final disposal of the suit. In the latter case the Court below rejected the prayer of defendant No. 1, to modify the aforesaid order of injunction. Aggrieved by the aforesaid two orders, defendant No. 1 has preferred these two Miscellaneous Appeals.

(2.) Plaintiffs are sons, widow and daughters of Late Styanarayan Singh. They have filed the aforesaid suit for partition of Schedule 'A' property and for permanent injunction restraining the defendants from changing the nature and character of Schedule 'B' property which is a common passage.

(3.) Plaintiffs case, in short, is thus : The suit property appertains to Sabik Plot No. 1241 measuring Ac. 0.126 decimal under Sabik Khata No. 416 of mouza Patapur popularly known as Gangamandir within the town of Cuttack. Originally it belonged to Krushna Prasad Singh. Predecessor of the plaintiffs, Gopal Prasad Singh and Govind Prasad Singh. The aforesaid owners amicably divided the same by means of a registered deed of partition dated 16.8.1940 and in the said partition Ac. 0.118 dec. out of total area of Ac. 0.126 decimal from southern side were allotted in the share of Krushna Prasad Singh. Since the date of partition. Krushna Prasad Singh possessed the same as his dwelling house, kitchen, latrine and a portion of it as a passage. Upon his death the same property devolved upon his only son Narendra Prasad Singh. Narendra was survived by six sons, namely, Laxminarayan, Satyanarayan, Badrinaranyan, Kedarnarayan, Adityanarayan and Rabinararyan and only daughter Priyambada. After Narendra's death his sons possessed the suit property jointly keeping a portion of it as a joint passage and subsequently due to inconvenience, they possessed separately without there being partition by metes and bounds. Laxminarayan sold his l/7th share to Narasingh Charan Mohanty by registered sale deed dated 20.8.1970. Similarly, Badrinarayan and Rabinarayan sold their shares to Surendranath Dwivedy by registered sale deed dated 1.8.1970 who subsequently sold the same to defendant No. 1 in 1988. Kedarnarayan, Adityanarayan and Priyambada transferred their respective shares jointly by a deed of sale deed dated 23.3.1981 to one Biswanath Pandit who subsequently sold the same to one Sanatan Behera in 1992 and the latter transferred it to defendant No. 1. The plaintiffs as successor of Satyanarayan Singh have l/7th share in the suit property and because the defendants are influential persons in the locality and have started putting up new construction over a major portion of 'A' Schedule property by encroaching upon the common passage described in Schedule 'B' of the plaint, they have filed the present suit claiming the reliefs as aforesaid.