SURENDRA MOHARANA Vs. RAJKISHORE MOHARANA AND ORS.

JUDGEMENT

(1.) Petitioner in this application has challenged the order dated 18.11.2014 passed by learned District Judge, Cuttack in F.A.O. No. 50 of 2014 while dismissing the appeal confirmed the order dated 20.03.2014 passed by learned Senior Civil Judge, 1st Court, Cuttack in Interim Application No. 614 of 2013 arising out of C.S. No. 297 of 2013 allowing an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure.

(2.) The present opposite party Nos. 5 and 6 as plaintiffs filed the aforesaid suit for partition and confirmation of their respective possession in respect of suit Schedule 'A', 'B' & 'C' properties. In the relief they have specifically seeking a direction against defendant Nos. 1 to 3 to allow the plaintiffs and other defendants to use Ac.0.03 dec. of land which is situated in between Schedule-A and Schedule-B as common passage. The defendants have not filed their written statement.

(3.) While matter stood thus the defendant Nos. 1, 2, 12 and 13 filed Interim Application No. 614 of 2013 under Order, 39 Rule, 1 & 2 of the C.P.C. impleading the plaintiffs and defendant No. 4 as opposite parties only without impleading other defendants. In the said application they have prayed for ad interim order of injunction restraining the opposite parties from raising any construction on the schedule land appended to interim application till disposal of the suit. The schedule of land appended to the interim application in respect Hal Khata No. 932, Plot No. 823 measuring an area of A0.184 dec. kissam of land gharabari which is the suit schedule 'C' land. The plaintiffs have filed their objection traversing the allegation made in the interim application. They have specifically contended that the applicants have not come to court with clean hand. During pendency of the suit they have approached the Executive Magistrate, Cuttack in Criminal Misc. Case No. 1001 of 2013 proceeding under Section 144 of Cr.P.C. suppressing the fact regarding pendency of the suit. The said proceeding was dropped as the suit is pending. They have also contended that the plaintiffs and all the defendants are constructing their residential structure over the suit schedule properties. They being separated in mess with respect to more or less of their respective shares. The plaintiffs and defendant Nos. 1 and 2 are residing over suit Schedule 'A' property and the defendant No. 4 along with other defendants residing over suit schedule 'C' properties by making construction with thatched roof from the time of their father. The said thatched house became damaged due to heavy rain in October, 2013 and wall of the house fell down for which the defendant No. 4 renovated the old standing structure to the extent of his share as per amicable settlement between the parties dated 03.12.2012. The interim applicants Rajkishore Moharana and Brajakishore Moharana are the signatories. The interim application is not maintainable over the entire area of A0.134 decimals without impleading the other co-sharer who are in possession of the said land as per allotment made on 03.12.2012. As the applicants have not fulfilled the three ingredients of injunction they are not entitle to the relief sought for and their application liable to be dismissed. In support of their respective contention they have produced the document regarding amicable settlement entered into by the parties in. respect of the suit schedule 'C' property. In the said document sketch map reflected partition of the land into 'A', 'B', 'C', 'D', along with E and E/1 with vacant passage towards Western, North side and Eastern side.