Daniel Das and Others vs Satyajit Das and Others

R.K. Das, J.—Plaintiffs are in appeal against the order of the learned Civil Judge (Senior Division),. First Court, Cuttack, passed in Misc. Case No. 293 of 1996 whereby they have been restrained from interfering with the possession of Defendant No. 1 over the suit land and the house standing thereon.

Plaintiffs suit is one for partition. The parties are Christian by religion and their right to succession is governed.by the Indian Succession Act. Admittedly the suit land belonged to one Late Jones Das who in his life time had divided the same amongst his sons and'' daughters. Plaintiffs 1 and 2 are the sons and 3 to 7 are sons'' sons. of Late Jones Das. Purna Kumari Das, one of the daughters of the recorded owner, had married to Defendant No. 1. She died issueless on 4-6-1990. The suit land appertaining to Hal Khata No. 5, plot No. 254 of area Ac.0.81 dec. had fallen to her share which she possessed till her death. Ids the Plaintiffs'' case that according to the Indian Succession Act, upon the death of Purna Kumari Das, they along with Defendants 2 to 5 are entitled to half share and Defendant No. 1 being the husband of Puma Kumari is entitled to half share in the suit land, Claiming to be the sole successor of the property left by Puma Kumari Das, Defendant No. 1 filed a petition u/s 236 of the Orissa Tenancy l which was registered as O.T. Case No. 69 of 1991 before the Tahsildar (5), Cuttack, and got the record-of-rights corrected in respect of the suit land in his favour. The Plaintiffs challenged the aforesaid order of the Revenue authority in higher forum and were unsuccessful. Thereupon they approached the civil court seeking partition of.the suit land. It is alleged that after the death ''of Purna Kumari, the Plaintiffs are in possession of southern part and the Defendant No. 1 is in possession of the northern part of the suit land.

The case of the Defendant No. 1 is that upon the death of Puma Kumari the recorded owner of the suit land, he being her husband has succeeded'' to the same in entirety. The Plaintiffs are not heirs of the recorded owner and therefore, are not entitled to any share in it. Being sole owner of the suit land, he has been possessing the same on his own right and has been paying rent and, municipal taxes and electric bills for the house standing thereon. He has denied the Plaintiffs'' assertion that they are in possession of the southern part of the suit land.

It appears from the record that the Plaintiffs'' prayer for an order of interim injunction restraining Defendant No. 1 from alienating any part of the suit land till disposal of the suit was allowed by the trial court. Defendant No. 1 challenged the said order upto this Court and was unsuccessful. Thereafter, second round of litigation was started by Defendant No. 1 by filing an application for injunction restraining the Plaintiffs from interfering in his possession. Learned court below'' upon hearing the parties ''and on consideration of the materials on record, allowed his prayer" and by-the impugned order restrained the Plaintiffs from interfering with his possession and it is against that order the Plaintiffs have.filed the present appeal.

It is observed by the learned court below, as borne out from the impugned order, Plaintiffs have a good case, inasmuch as they being kindred of Purna Kumari Das are entitled to half share in the suit land, but, however relying upon certain documents such as, the receipts, rent receipts etc. found prima facie possession with Defendant No. 1 and consequently restrained the Plaintiffs from interfering with his possession. It is the basic principle of law that possession follows title. In that view of the matter once the court held the Plaintiffs to have prima facie case, inasmuch as they have half share in the suit land, without there being any other acceptable evidence except the documents referred to above, it should not have found possession with Defendant No. 1 in respect of whole of the suit land particularly when the Plaintiffs have specifically claimed to be in possession of southern part along with the house standing thereon. In my considered opinion, therefore proper order would have been-to direct the parties to maintain status quo, 6. Resultantly, the appeal is allowed and the impugned order of injunction passed against the Plaintiffs is set aside. Both parties are directed to maintain status quo of the suit land and the'' house standing thereon till disposal of the suit. There shall be no order as to cost.

Appeal allowed.