ORDER
L. Mohapatra, J.
1. The plaintiff has filed this appeal challenging the order dated 22.7.2005 passed by the learned Civil Judge (Senior Division), Jeypore in I.A. No. 7 of 2005 rejecting her application filed under Order 39, Rules 1 and 2 of the C.P.C.
2. The case of the plaintiff-petitioner is that late Hazi Yousuf Alli Madani was the owner in possession of ‘A’ schedule property and after his death, his three sons and three daughters succeeded to the property alongwith his widow, Nurjahan. Two of the sons were unmarried and died and one of the daughters namely, Hussani died leaving behind the plaintiff-appellant as her sole successor. Another daughter namely,
3. Tahira died leaving behind defendants 3, 4 and 5. The widow of Hazi Yousuf Alli Madani also died while in jointness. According to the plaintiff-appellant, ‘A’ schedule property is being enjoyed only by the defendants 1 to 5. The allegation in the plaint is that the defendant No. 1 Sayed Mohammed Madani being the eldest was looking after the property and taking advantage of such a situation could manage to obtain a deed of family settlement from other shareholders and by virtue of the deed of family settlement, sold a portion of ‘A’ schedule land to one V. Venkatratanam and Killam Setti Chinamanikyam. Defendant No. 1 subsequently managed to obtain a sales deed from the successors of V. Venkatratanam and also other shareholders, but again 50% of the same was transferred back to the defendant No. 1. The other part of the property was also transferred to different persons. In the suit the plaintiff prayed for partition and for declaration that the deed of family settlement dated 13.3.1965 and the sale deeds executed on the basis of the said deed of family settlement are void in law and not binding on the plaintiff. In the suit an application for injunction was filed for prohibiting the purchasers from making any construction over the suit property. The said petition having been rejected, the present appeal has been filed.
4. Shri Basudev Mishra, the learned Counsel appearing for the appellant challenges the order on the ground that there being no dispute about genealogy, the plaintiff has a prima facie case to succeed before the trial Court. It was also submitted by him that in the event of success, the plaintiff will not be benefited in any way, if the purchasers are permitted to make construction over the suit property and, therefore, the trial Court should have allowed the application.
5. The learned Counsel appearing for the respondent on the other hand submitted that admittedly the plaintiff is not in possession of the suit property and the deed of family settlement, which is under challenge before the trial Court is based on which properties have been sold to different persons. It was also contended by the learned Counsel that only when the deed of family settlement is declared to be nulland void, the question of partition will arise and, accordingly the appellant has no prima facie case.
6. The question that requires to be adjudicated by the trial Court is as to whether there was a prior family settlement or not. It is accepted that there was a prior family settlement, not only the prayer for partition but also the prayer for declaration that the sale deed executed by the defendant No. 1 in favour of different persons to be declared as null and void, cannot be allowed. This Court in the case of Ramchandra Pani v. Keshab Chandra Panda and Anr. reported in 1995 (II) OLR 652 referring two decisions of the Apex Court laid down the principles for grant of injunction. The Court observed as follows:
While granting injunction, Court has to be satisfied about existence of a prima facie case, balance of convenience and irreparable loss. Conditions are cumulative and do not exist independent of each other. Even if it is accepted that one party has a prima facie case that would not be sufficient to get an order of injunction unless two other conditions i.e. balance of convenience and irreparable loss exist. The grant of an interlocutory injunction during pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests – (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved. The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against the injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies. (See Wander Ltd. and Anr. v. Antom India P. Ltd. (1990) (Supp.) SCC 727, Gujarat Bottling Co. Ltd. and Ors. v. The Coca Cola Co. and Ors. 1995 (4) Scale 635. Courts below have found prima facie case and balance of convenience to be balancely poised between petitioner and opposite parties.
Admittedly in the present case, the purchasers are in possession of a part of the ‘A’ schedule property. These sale deeds have been effected long back and, therefore, the plaintiff is not in possession of part of the ‘A’ schedule property in respect of which the prayer for injunction is sought for. The deed of family settlement is of the year 1965 and the suit has been filed in 2005. During this period several transactions have taken place. If ultimately the Court comes to the conclusion that there was a family settlement amongst the shareholders, the question of further partition will not arise and consequently the prayer for declaration has to be turned down.
I am, therefore of the view that the trial Court was right in observing that the plaintiff-appellant has not been able to put forth a prima facie case and the balance of convenience also does not lie in her favour. So far as irreparable loss is concerned, the learned Counsel for the appellant relied upon a decision of this Court in the case of Judhistira Misra and Ors. v. Sri Sri Radha Bansi Gopinath Jew Thakur and Ors. reported in 1987 (II) OLR 587. The Court in the aforesaid decision also took note of the earlier decision in the case of Narayan Bisoi and Anr. v. Raghunath Bisoi reported in 1986 (II) OLR 145 on which much reliance is placed by the learned Counsel for the appellant. In both the decisions this Court held that when there is a claim for partition, continuance of construction of house on suit plot during pendency of the suit is not desirable, as at the final decree stage, it disturbs equity and in such cases an order of status quo should be passed. On perusal of facts of both the cases, I find that there was no claim of a prior partition. When the defendants raised the plea of a prior partition/family settlement, in the event the plaintiff fails, an order of status quo may also cause prejudice to the defendants specially the purchasers who have taken possession on the basis of the sale deeds and are restrained from making any construction or using the property the way they want.
Under these circumstances, I do not find any merit in the appeal and accordingly, the same is dismissed.