Judgment:
ORDER
P.K. Tripathy, J.
1. A memo of appearance is filed in favour of Mr. B.A. Mahanti, Senior Advocate, to address the Court on behalf of the opposite parties. A written note of submission along with xerox copy of documents have also been filed by the opposite parties. Petitioner files a xerox copy of the plaint for perusal of the Court.
2. Learn counsel for the opposite parties states that he is under instruction to State that the opposite parties are not willing to abide by the proposal given by the petitioner relating to nonalienation of the suit property during pendency of the suit.
3. Heard argument from both sides. This civil revision stands disposed of at the stage of admission in the following manner.
4. Petitioner is the plaintiff in Title Suit No. 145 of 2002 of the Court of Civil Judge (Senior Division), Puri and the opposite party Nos. 1 and 2 are defendants 1 and 2, and opposite party No. 3 is the defendant No. 8 in that suit. That suit has been filed, inter alia, for the relief of permanent injunction with respect to a part of plot No. 1272 measuring an area of Ac.1.30 decimals out of an area of Ac.2.60 decimals as per the Schedule-A of the plaint. That land has been recorded in Khata No. 1 in Mouza Samangara under Puri Sadar Police Station. It is the admitted position on record that the suit land has ail-throughout been recorded in the name of defendant No. 5, i.e., Shri Jagannath Mahaprabhu-Bije-Srimandir, Puri and he has been represented through defendant Nos. 6 and 7, i.e. the Managing Committee and the Temple Administrator respectively. Plaintiff claims title and possession over the disputed property on the basis of a registered sale deed executed by the eldest son of one Para Dei. The said transferor is not a party to this suit. Plaintiff's case is that originally one Prana Krushna was the lessee under defendant No. 5 having heritable right and interest over the leased property and that suit property was a part of that leased property. Said Prana Krishna transferred some lands including the suit land in favour of one Ghanashyam followed by a sale by said Ghanashyam in favour of one Dhani Dei. After the death of that Dhani Dei, her two daughters namely Haramani and Para Dei succeeded to such purchased land and that includes the suit land. In an amicable partition between Haramani and Para Dei the disputed land fell to the share of Para Dei and, as noted above, the eldest son of that Para Dei on 27.11.1999 sold the suit property in favour of the plaintiff through a registered sale deed. Accordingly plaintiff claims right, title, interest and possession over the case land.
5. The fact stated by the defendants/opp. parties is contrary to the aforesaid pleading of the plaintiff. They lay their claim over the suit land on the basis of a sale deed executed by defendant No, 7 on due and legal permission from the State and defendant No, 6. They have claimed and reiterated that it is the defendant No. 5 who was the rightful owner by the date of execution of sale deed in their favour in the year 1999.
6. It is not in dispute at the Bar that the present dispute was before the Civil Judge (Jr. Division) at the instance of the plaintiff and during pendency of that suit effort of the plaintiff to secure an order of temporary injunction did not yield any result save and except interlocutory orders for maintaining status quo being passed by the appellate and revisional Courts during pendency of such appeal and revision respectively in the Court of District Judge and this Court. It is also not disputed that the plaint being amended on the ground of jurisdiction, plaintiff withdrew that suit and filed the present suit in the Court of Civil Judge (Sr. Division), Puri.
7. Learned counsel for the petitioner states that alienation made by the opposite parties in violation of the order of status quo granted by this Court is pending consideration in M.J.C. No. 131 of 2002.
8. After institution of the suit in the Court of Civil Judge (Sr. Division), petitioner applied for temporary injunction in accordance with the provision under Order 39, Rules 1 & 2, C.P.C. Accordingly, he filed I.A. No. 120 of 2002. After hearing the parties on 13.8.2002, learned Civil Judge rejected that application on the ground that the balance of convenience lies in favour of the opposite parties and therefore, temporary injunction cannot be granted in favour of the petitioner which shall have the effect of dispossessing the opposite party members. As against that, petitioner preferred F.A.O. No. 91 of 2002. On 21.12.2002, vide the impugned judgment, learned District Judge, Puri refused to interfere with the order of the Civil Judge and accordingly dismissed the appeal.
9. Learned counsel for the petitioner argues that in view of the claim advanced by the plaintiff in his plaint and there being documents in support of his claim, plaintiff has a prima facie case in his favour and in the event of not restraining the defendants from alienating the property during pendency of the suit, he will suffer harassment and loss which cannot be compensated and on the other hand it will result in protracting the litigations against the lis pendense purchasers. He further states that plaintiff is willing and undertake to abide by the direction of this Court for early disposal of the suit within a targeted period but during that period there should be a prohibition against alienation of the propertyby the defendants. Learned counsel for the petitioner states that at present except that the petitioner does not pray for any other relief in his application under Order 39, Rules 1 & 2, C.P.C.
10. Learned counsel appearing for the opposite parties on the other hand states that when the defendants have valid right, title, interest and possession over the property, merely on the basis of a story set up by the plaintiff the Court should not pass any order which shall result in making inroad to their right, title, interest and possession. When the defendants are the rightful owner of the property and they are in possession of the same, there should not be any restriction imposed on them to deal with the property in the manner they desire. If in the long run the plaintiff shall succeed, though the chance is remote, then the defendants do not dispute to the alienation during the pendency of the suit to follow the consequences of lis pendense by operation of law and therefore, the provision in the Transfer of Property Act shall squarely protect the rights of the plaintiff in that respect. Learned counsel for the opposite parties also states that the concurrent finding on fact by the Courts below when not found to be illegal or unreasonable, this Court should not interfere with that factual finding and order of dismissal on the prayer for injunction.
11. On due consideration of the aforesaid contention of both the parties, keeping in view the nature of the dispute and the pleas in support of their respective claim of right, title, interest and possession, so also the provision in Section 115 of the Code, this Court finds that while in seisin of the aforesaid dispute this Court should not interfere with the finding on fact recorded by the Courts below when there is no apparent illegality or perversity. It may also be noted here that, learned counsel for the petitioner, in course of argument, contended that the findings recorded by the Courts below have virtually non-suited him. That apprehension is unreasonable inasmuch as the discussion which the Courts below have made on documents and contention of the parties and the findings which the Courts below have recorded for disposal of the application under Order 39, C.P.C. do not have the effect of adjudicating the relevant issues (which may arise in the suit) but to dispose of the interlocutory application. On the other hand, after recording the evidence adduced by the parties the Court below shall afresh consider the question of title and possession, etc. to decide the issues, and at that stage the aforesaid findings in the impugned orders will not operate as res judicata. Therefore, the aforesaid apprehension of the petitioner is not correct.
12. So far as the prayer of the petitioner to issue a direction to the defendants not to alienate the property is concerned, anobservation made in that respect will suffice the purpose inasmuch as any transfer which shall be made during pendency of the suit shall be subject to the provision in Section 52 of the Transfer of Property Act, 1882. In view of that, there is no necessity to pass order of prohibition prohibiting the opposite party No. not to alienate the property during pendency of the suit.
13. So far as the proposal of the plaintiff for early disposal of the suit, that is not opposed by the defendants/opp. parties. Therefore, it will be appropriate for the Civil Judge to take steps for early disposal of the Civil suit. In that respect if the defendants or any of them is yet to file written statement, then liberal adjournment in that respect be avoided, settlement of issues be expedited and thereafter hearing of the suit be taken up and completed, as far as practicable, within a period of six months from the date of settlement of issues.
The Civil Revision is accordingly disposed of.