CMP No.1623 of 2023 ORISSA HIGH COURT : CUTTACK CMP No.1623 of 2023 An application under Article 227 of the Constitution of India. *** Anil Kumar Das … Petitioner. -VERSUS- St. Bidulata Das & Others … Opposite Parties. Counsel appeared for the parties: For the Petitioner : Mr. G. C. Rout, Advocate. . For the Opposite Parties : Mr. B. Bhuyan, Senior Advocate Assisted by Ms. S. Sahoo, Advocate. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 24.04.2026 :: Date of Judgment :13.05.2026 CMP No.1623 of 2023 JUDGMENT ANANDA CHANDRA BEHERA, J.— 1. This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioner (defendant No.1 in the suit vide C.S. No.779 of 2023) against the Opp. Parties (plaintiffs in the suit vide C.S. No.779 of 2023 pending in the Court of learned Civil Judge, Jr. Division Bhubaneswar) praying for setting aside the impugned Judgment dated 18.11.2023 (Annexure-5) passed in F.A.O No.82/2023 by the learned Addl. District Judge, Bhubaneswar. 2. The factual backgrounds of this Civil Misc. Petition, which prompted the petitioner for filing the same is that, the Opp. Parties being the plaintiffs filed the suit vide C.S. No.779 of 2023 against the petitioner and others arraying them as defendants praying for declaration that, the registered sale deed No.3142 dated 29.04.2003 as well as the R.o.R vide Khata No.299/579 in the name of the petitioner (defendant No.1 in the suit vide C.S. No.779 of 2023) in respect of “B” CMP No.1623 of 2023 schedule suit properties is illegal and the same is not binding upon them (plaintiffs) and to restrain him(defendant No.1) along with other defendants permanently from creating any sort of disturbance in the possession of the plaintiffs over both the suit schedule properties stating in the plaint that, one Iswar Chandra Das died leaving behind his only son Golekha Bihari Das. Golekha Bihari Das died leaving behind his 3 sons i.e. Gagan Bihari Das, Atal Bihari Das and Narayan Das. The plaintiffs (Opp. Parties in this CMP) are the successors of Narayan Das. The petitioner (defendant No.1) is one son of Gagan Bihari Das. Both the schedule of properties are situated in one compact area. Their predecessor i.e. Golekha Bihari Das had constructed a house over a portion of “B” schedule properties i.e. in a portion of plot No.197. A government road is running to the east of the said suit plot No.197. When on dated 28.12.2022, the defendant No.1 (petitioner in this CMP) started demolishing the old house on schedule “B” properties, CMP No.1623 of 2023 to which, the plaintiffs (Opp. Parties) protested, then, the petitioner showed a sale deed bearing No.3142 dated 29.04.2003 executed by the co-sharers of the suit properties in his favour and subsequently, they (plaintiffs) came to know that, the petitioner has mutated the same to his name and he has also converted the B schedule suit land from agricultural to homestead in his favour as per the Order passed in OLR Case No.267/2018 though, the same is not related to the B schedule suit properties rather the same is an another property. When again on dated 08.05.2023, the petitioner (defendant No.1) came to the suit land with bulldozer along with some labourers and started demolishing the old house over suit plot No.197, to which, the plaintiffs (Opp. Parties in this CMP) protested, for which, the defendant No.1 (petitioner) threatened to occupy both the schedule suit properties, then, the plaintiffs filed the suit vide C.S. No.779 of 2023 seeking the aforesaid reliefs against the defendants including the defendant No.1. 3. In the said suit vide C.S .No.779/2023, the plaintiffs filed I.A. No.1/2023 under Order 39, Rule 1 and 2 read with CMP No.1623 of 2023 Section 151 of the CPC, 1908 praying for injuncting the defendant No.1 (petitioner in this CMP) temporarily from changing the nature and character of both the suit schedule properties and from making any illegal alienation and from creating third party interest therein in any manner till the final disposal of the suit. The Opp. Party/defendant No.1 (petitioner in this CMP) objected to the same stating that, he has purchased the “B” schedule suit plot No.197 through RSD No.3142 dated 29.04.2003 from the owners thereof i.e. from the other defendants and he has also mutated the said properties to his name and after mutation, separate mutation R.o.R has already been prepared in his name vide Khata No.299/579 and the said land has already been converted from agricultural to homestead in his favour. After conversion of the said suit plot No.197 from agricultural to homestead, he demolished a portion of the old house therein and he is making a new construction therein and the said construction is going on and that constructions have already been reached up to linten level and he is residing in the other undemolished CMP No.1623 of 2023 portion of the said plot No.197. For which, on the basis of the documents relating to his ownership and possession coupled with the constructions thereon substantially up to lintel level, no order of temporary injunction should be passed against him and the I.A. filed by the plaintiffs for temporary injunction is liable to be dismissed. 4. After hearing from both the sides, the learned Trial Court as per Order dated 21.06.2023 dismissed to the said I.A. No.1/2023 of the petitioners (plaintiffs) on contest assigning the reasons that, “the sale deed as well as R.o.R and the order passed in OLR Case No.267/2018 are going to show that, the petitioner is in possession over the suit land described in Schedule “B” and he had built a pucca house thereon in a portion thereof up to roof level and if at this stage, the order of temporary injunction will be passed against the Opp. Party, the same will certainly create greater inconvenience to him. For which, balance of convenience does not tilt in favour of the petitioners. Accordingly, the aspect of irreparable injury need not be looked into. The I.A. liable to be dismissed.” 5. On being dissatisfied with the aforesaid dismissal order of I.A. No.1/2023 passed on dated 21.06.2023 by the learned Civil Judge, Jr. Division, Bhubaneswar, the petitioners (plaintiffs) challenged the same by preferring an Appeal vide F.A.O. No.82/2023 under Order 43, Rule 1(r) of the CPC, CMP No.1623 of 2023 1908 being the appellants against the defendant No.1 arraying him (defendant No.1) as respondent praying for setting aside the impugned order dated 21.06.2023 passed in I.A. No.01/2023. After hearing from both the sides, the learned Appellate Court allowed that F.A.O. No.82/2023 as per Judgment dated 18.11.2023 and directed both the parties to maintain status quo over the suit properties till the disposal of the suit vide C.S. No.779 of 2023 and also directed the learned Trial Court to take all necessary steps for early disposal of the suit vide C.S. No.779/2023 preferably within a period of 6 months from the date of communication of that Judgment with a further direction to the parties not to take any unnecessary adjournments and to cooperate the learned Trial Court for early disposal of that suit assigning the reasons that, “the suit properties are the Sikim properties of the appellants and respondent. The appellants and respondent are the successors of Sikim tenant Iswar Chandra Das having their right, title and interest over the suit schedule properties. The respondent (petitioner in this CMP) has purchased the suit land through R.S.D. No.3142 dated 29.04.2003 from his vendors and thereafter, he has mutated the same to his name and CMP No.1623 of 2023 subsequently, he has converted the same from agriculture to homstead as per the order passed in OLR Case No.267/2018 and after conversion of the land, the respondent (petitioner in this CMP) demolished a portion of the old house situated over the suit land and he is constructing a new structure, which has been reached up to linten level and when the appellants (plaintiffs) have challenged the legality of registered sale deed bearing No.3142 dated 29.04.2003 executed in favour of the respondent (petitioner in this CMP), for which, prima facie case is existing in favour of the appellants and it also appears from the record that, the respondent is trying to change the nature and character of the suit properties by making construction on the same and if the respondent is allowed to proceed with the construction on the suit land, then, he will take an undue advantage. The law is well settled that, when a dispute arose in respect of the title of the suit land and parties were found to be in possession over the disputed land, an order of injunction restraining the respondent from putting up construction on the suit land would be justified. When in the case at hand, the respondent is constructing a new structure on the suit land as discussed above and both the parties have claimed their right, title and interest over the suit properties and when the suit is at its initial stage and the rights of the parties are yet to be determined by the learned Trial Court with reference to the evidence to be led by both the parties, then, if injunction or status quo would not be granted during the pendency of the suit, the nature and character of the suit properties can be changed at the instance of the respondent CMP No.1623 of 2023 (defendant No.1). For which, it would be just and proper to direct both the parties to maintain status quo over the suit properties till the final disposal of the suit.” 6. On being aggrieved with the aforesaid Order dated 18.11.2023 passed in F.A.O No.82/2023 directing both the parties to maintain status quo over the suit properties till the disposal of the suit, the defendant No.1 challenged the same by filing this CMP under Article 227 of the Constitution of India, 1950 praying for setting aside the impugned order dated 18.11.2023 passed in F.A.O. No.82/2023. 7. I have already heard from the learned counsel for the petitioner (defendant No.1) and the learned Senior Counsel for the Opp. Parties (plaintiffs). 8. During the course of hearing, learned Senior Counsel for the Opp. Parties (plaintiffs) relied upon the decision between Daitari Swain Vs. Kartika Swain & Others : 2019 (I) ILR Cuttack 659 (Full Bench) in support of the impugned order passed in FAO No.82/2023. 9. It is the concurrent findings and observations of the learned Trial Court and the learned Appellate Court in the CMP No.1623 of 2023 Order and Judgment passed in I.A. No.01/2023 and F.A.O No.82/2023 respectively that, both the parties are the successors of Sikim tenant i.e. Iswar Chandra Das and they have their right, title and interest over the suit properties and the petitioner is the purchaser of the properties described in Schedule B of the plaint through R.S.D. No.3142 dated 29.04.2003 and after purchase, the said purchased properties of the petitioner have already been mutated to his name and a separate R.o.R vide Khata No.299/579 has already been prepared in his name and he (petitioner) has also converted his purchased land described in schedule-B of the plaint into homestead land and he has also demolished a portion of the old house situated on the said schedule-B land and after demolition, he is making a new construction on the demolished portion, which has already been raised up to linten level and the learned appellate court passed the impugned order of status quo against the petitioner restraining/prohibiting him (petitioner) indirectly from completing the constructions of the house assigning the CMP No.1623 of 2023 reasons that, if he will be allowed to proceed with the construction, the same will provide him an undue advantage. 10. The documents i.e. revenue records in favour of the petitioner i.e. R.S.D. No.3142 dated 29.04.2003 and the R.o.R vide Khata No.299/579 as well as the order of conversion of the schedule-B suit properties from agriculture to homestead land and the construction made by the petitioner up to linten level over the demolished portion of the schedule-B suit properties are going to show that, the petitioner is in possession over the B-schedule suit properties. 11. It is the settled propositions of law that, when constructions will have been made by any party on the suit properties substantially up to lintel level, then, there will be no justification under law to stop such constructions. Because, balance of convenience leans in favour of the completion of such construction, but not to stop that construction, as the same cannot be in the interest of justice. It is the settled propositions of law that, a half constructed house is beneficial to no party. Therefore, the CMP No.1623 of 2023 balance of convenience leans in favour of completion of the construction, rather than obstruction of construction. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between Khiroda Prasad Routray vrs. Smt. Satyabhama Routray and others : reported in 1986(II) OLR NOC22 that, Order of ad interim injunction prohibiting the defendant from completing a half constructed house passed in Order-39, Rules-1 and 2 of the C.P.C. was vacated, because, a half constructed house is beneficial to no party. (ii) In a case between Bholeswar Sahu and another vrs. Rama Chandra Behera and another : reported in 90(2000) CLT294(Para-6) that, When a building has been constructed upto a considerable extent, then, it may not be in the interest of justice to stop further construction. It cannot be said that, balance of convenience lies in favour of the party opposing such construction. (iii) In a case between Assa Manayami vrs. Pawan Kumar Dugat : reported in 2025(2) Civil Court Cases-535(Rajasthan) that, When, construction of CMP No.1623 of 2023 wall is already over and only finishing work is remain, then, petition under Order-39, Rules-1 and 2 read with Section 151 of the C.P.C. was rightly rejected.(Para-6) (iv) In a case between Trilochan Mangaraj Vs. Rasabihari Pradhan & Others decided on dated 10.04.2026 in CMP No.373 of 2024 that, when the construction of a building has been has been made up to a considerable extent, then, the same cannot be in the interest of justice to stop its further construction, because, a half constructed house is beneficial to no party. 12. When it is the concurrent findings of the learned Trial Court and the learned Appellate Court in the Order and Judgment passed in I.A. No.01/2023 and F.A.O. No.82/2023 respectively that, the petitioner is the purchaser of the B schedule suit properties through R.S.D. No.3142 dated 29.04.2003 and he is in possession over the same on the basis of the R.o.R vide Khata No.299/579 as well as the order of conversion passed in OLR Case No.267/2018 and when the aforesaid sale deed dated 29.04.2003 as well as the R.o.R vide Khata No.299/579 and the order passed in OLR Case CMP No.1623 of 2023 No.267/2018 in favour of the petitioner in respect of the B schedule suit properties have not been set aside or cancelled as yet and when the petitioner is constructing a pucca house over the demolished portion of B schedule suit properties and when the said construction has already been reached up to linten level and when it is the settled propositions of law that, a half constructed house is beneficial to no party and the balance of convenience leans in favour of the completion of the construction, rather than obstruction of construction, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the learned Appellate Court should not have reversed the dismissal order of I.A. No.1/2023 passed by the learned Trial Court and also should not have passed the impugned order of status quo directing both the parties including the petitioner to maintain status quo over the suit properties indirectly restraining the petitioner from completion of his half constructed building which has already been raised up to a considerable extent. For which, there is justification under law for making CMP No.1623 of 2023 interference with the said part of the impugned order passed by the learned Appellate Court in F.A.O. No.82/2023 through this CMP filed by the petitioner. Therefore, this CMP filed by the petitioner is to be allowed in part. For which, the decision relied on behalf of the Opp. Parties indicated in Para No.8 of this Judgment is not applicable to this matter at hand for the reasons assigned above. 13. The impugned order of status quo passed in F.A.O. No.82/2023 by the learned Addl. District Judge, Bhubaneswar is liable to be set aside. As such, there is some merit in the CMP filed by the petitioner. The same is allowed in part. 14. The impugned order i.e. the order of status quo in respect of the “B” schedule suit properties passed on dated 18.11.2023 in F.A.O No.82/2023 by the learned Appellate Court is set aside and the petitioner is allowed to complete the constructions of the half constructed house over B schedule suit properties subject to the condition that, he CMP No.1623 of 2023 (petitioner/defendant No.1) shall submit an undertaking before the learned Trial Court in the suit vide C.S. No.799/2023 stating clearly that, he shall not claim any equity in respect of the completed construction and such construction shall be subject to the Judgment and direction made/passed by the learned Trial Court in the suit vide C.S. No.799/2023, but the other part of the Judgment passed in F.A.O No.82/2023 by the learned Appellate Court directing the learned Trial Court to dispose of the suit preferrably within a period of 6 months from the date of communication of the Judgment is confirmed. 15. As such, with the aforesaid modification of the Judgment passed in F.A.O. No.82/2023 by the learned Appellate Court, this CMP is disposed of finally. 16. Accordingly, the learned Trial Court is directed to dispose of the suit vide C.S. No.799/2023 pending in his Court within a period of 6 months either from the date of communication of this Judgement or from the date of production of the certified copy of this Judgment by any of the parties. CMP No.1623 of 2023 17. Registry is directed to communicate the copy of this Judgment to the learned Civil Judge, Jr. Division, Bhubaneswar in reference to the suit vide C.S. No.799/2023. 18. Hence, this CMP filed by the petitioners (plaintiffs) is disposed of finally. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 13th May, 2026// Rati Ranjan Nayak Sr. Stenographer