APPEAL MEMO

1. That the Appellant vide this FAO assails the order dtd 11.02.25 passed by the 3 rd
Additional Civil Judge (Sr. Div), Cuttack in C.S No. 01 of 2023 arising out wherein the
said suit was rejected by the said court in a manner unknown to law and by no application
of judicial mind.

2. That the brief facts of the case are that the Appellant being the Plaintiff initiated a civil
suit bearing C.S. No. 01 of 2023 against the Respondents/ Defendants with the prayer to
pass decree for partition of the Schedule B property, allotting 3/5th share to the Plaintiffs.
If a partition is not completed within the stipulated time, a Commissioner should be
appointed to divide the property and separately allot the Plaintiffs' share. Additionally,
the alienation of 2/3rd share in favor of Defendant No. 4 through the RSD dated
22.08.2022 should be declared void and such mutation RoR prepared with respect of the
Schedule B property should be illegal and a injunction should be passed restricting the
Def. 4 from alienating or changing the nature of the Schedule B of the property.

The case of the Plaintiff in gist is that the plaintiff Bhimsen Ojha is one of the son of the
Late Krushna Chandra Ojha who was the original owner of the of the property bearing a
Khata No. 490 of Cuttack Town, Unit No. 29, Chauliaganj and the common ancestor of
the parties who died on 1972, leaving behind a wife Kuna who died on16.10.2005, three
sons namely Kalandi, Bhimsen, Late Pramod and two daughters namely Basanti and
Tilottama. Late Pramod who died on 17.04.2019, leaving behind his wife Sanjukta and a
son and a daughter namely Abhisekh and Abhipsa respectively. After the death of the
Krushna Chandra Ojha, the said property has been recorded in favor of the Mutation Case
No. 860 of 2005, omitting the names of Basanti Moharana and Tilottama Choudhury, the
two plots bearing a Khata No. 930/1708 measuring area of Ac 0.016 dec and plot no. 930
bearing an area of Ac0.015 dec recorded as Homestead (Dokana Ghara), the said
property has not been partitioned by the successors of Krushna Chandra but the parties
are possessing their respective shares, wherein the Plaintiffs are entitled to 3/5 of the
share whereas the Def. 2 to 4 are jointly entitled to 1/5 share. In the year 2022, Def. No. 4
has purchased the suit land on 22.08.2022 from Def. No. 1 to 4 and the same is recorded
in her name.
The Sale Deed dtd 22.08.2022 has been executed by the Def No. 4 for the consideration
of Rs. 16,53,280, area measuring Ac0.020 dec. 666 Sq. Links out of Ac.0.016 from the
plot no. 930/1708 and an area measuring Ac0.010 dec out of Ac0.015 from the plot no.
930, in the deed 2/3 interest of the property been transferred in favor of the Def No. 4.

The plaintiff is contending that the Sale deed is false, baseless and intentionally made in
order to deprive the plaintiff from their right over the land as, there was no consideration
of money mentioned in the sale deed, and the Plaintiff no 1,2 & 3 are the co-parcener’s of
the said property their consent was not taken prior to the execution and registration of the
sale deed, for which the sale deed is void, since also there was no partitioned of the said
property by the Def No. 1 to 4, the purchaser of the land i.e. Def No. 4, has not acquired
the right, title, interest over the said property.

The plaintiff is also contending that the Def No. 4 with the help of the Tehsil authority,
the Def No. 4 has managed to record Ac0.031 dec i.e the entire Schedule-B Property
instead of the purchased area measuring Ac0.020 dec. 666 Sq. Links, as a matter of fact
no notice has been issued/ served. Therefore, the recording of the name of the Def No. 4
in the mutation Khata No. 736/723 is illegal, erroneous, so recording the said mutation
RoR, will affect the right, title, interest if the Plaintiffs over the Schedule-B property. As
the Def No. 4 has been recorded in the RoR and the Def No. 4 is trying to create a third-
party interest over the sadi suit Schedule B property and interference over the peaceful
possession of the Plaintiff’s land.

The Plaintiff have got 3/5th share of the suit Schedule B property, hence the plaintiff
demanded for the partitioned for the allotment of their 3/5th share of the Schedule B
property.

The cause of action arose for the filing of the suit on various date such as on death of
Krushna Chandra Ojha, and on 16.10.2005 the death of Kuna and on 25.08.2023 when
the plaintiff knew about the existence of the mutation of RoR in the name of the Def. No.
4 and the on 18.09.2023 when plaintiff came to know about the existence of the void sale
deed, and on 04.10.2023 when the last date of the request for the settlement of the matter
turned into deaf ear.
 For that the prima facie case also leans in favor of the Plaintiff and the prayer sought is to
pass a decree for partition of Schedule B property, allotting 3/5th share to the Plaintiffs. If
not completed within the stipulated time, appoint a Civil Court Commissioner for
division. Declare the alienation of 2/3rd share to Defendant No. 4 via RSD dated
22.08.2022 void, along with any related mutation RoR. Issue an injunction restraining
Defendant No. 4 from further alienation or altering the property's nature and perpetual
injunction should be passed restraining the Defendant No. 4 from alienating or changing
the nature and character of the Schedule B property.

(((((IA))))

3. That on 03.09.2024 filed an Objection by the Defendants, the defendants argues that an
injunction application, possession is a paramount factor, along with prima facie title. The
opposition denies allegations of changing the nature of the land or creating third-party
interests.
The Defendants argues that disputed land was originally recorded in the name of Kalandi
Ojha and others, who legally transferred it to the opposition party through a registered
sale deed dated 22.08.2022, with valid consideration, possession delivery, and rent
payment. The opposition party applied for mutation (M.C. No - 3115/2023) and obtained
the R.O.R in September 2024 under Khata No - 736/723. Rent receipts confirm
possession without any dispute. The petitioners lack title, interest, or possession over the
land.
4. The Civil Judge (Sr. Div), Cuttack after hearing at length the contention of both sides,
erroneously and having misinterpreted the law, passed the impugned order dtd. 11.02.25
rejected the I.A. No.. The Ld. Court held that the Plaintiff-Petitioner is not entitled to the
prayer as the petitioners seek partition of the suit land and challenge the RSD executed in
favor of Defendant No. 4. While the petitioners claim to be the legal successors of the
original recorded owner, they have not submitted any documents proving their father's
ownership or their possession of the land. Currently, the suit land is recorded in the name
of the Defendant No.4, creating a presumption of possession in their favor. Granting an
injunction at this stage would amount to restraining the recorded tenant, causing more
inconvenience to the defendants than to the petitioners. The plaintiffs have failed to
establish the necessary grounds for an injunction. Hence the suit has been dismissed
against the O.P.