High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.259 OF 2023 - (A) & RSA No.276 of 2023 - (B) In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned 3rd Additional District Judge, Cuttack in RFA No.511 of 2022 & R.F.A. No.514 of 2022 confirming the judgment and decree passed by the learned 2nd Additional Senior Civil Judge, Cuttack in Title Suit No.378 of 2001. ……… RSA NO.259 OF 2023 Santosh Kumar Sahoo & Others -:: VERSUS ::- :::: Appellants. Basanti Sahoo & Others :::: Respondents. RSA NO.276 OF 2023 Debendra Kumar Sahoo -:: VERSUS ::- :::: Appellant. Santosh Kumar Sahoo & Others :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants … M/s.B.B. Mishra-2, Advocate & Associates (In R.S.A. No.259 of 2023) M/s. Diptirekha Nanda, Advocate & Associates (In R.S.A. No.276 of 2023) For Respondents
Legal Reasoning
… Mr.A.K. Sarangi,Advocate & Associate (RSA No.259 of 2023) Mr. G.K. Parida, Advocate & Associate (RSA No.276 of 2023) CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Judgment: 05.10.2023 :: Date of Hearing: 13.11.2023 --------------------------------------------------------------------------------------- {{ 2 }} D.Dash,J. Since both these Appeals as at (A) and (B) arise out of the judgment passed by the learned 3rd Additional District Judge, Cuttack in R.F.A. No.511 of 2022, those were heard together for their disposal by this common judgment. 2. The Appellants of the Appeal as at (A) being the Defendant Nos.2 to 4 before the Trial Court had carried the Appeal under section 96 of the Code of Civil Procedure (for short, ‘the Code’) in assailing the final decree passed in Title Suit No.378 of 2001. The Appeal having been dismissed when the Appellants (Defendant Nos.2 to 4) have filed the Appeal under section 100 of the Code as at (A), the Defendant No.5 as the Appellant has filed the other Appeal as at ‘B’. 3. The Respondent Nos.4 to 7 as the Plaintiffs had filed the suit for partition of schedule ‘B’, ‘C’ and ‘D’ lands as also the properties described in schedule ‘E’, ‘F’ and ‘G’. The judgment and preliminary decree passed in Title Suit No.378 of 2001 was challenged in the First Appeal vide R.F.A. No.87 of 2012 before this Court. The First Appeal was dismissed. Thereafter the Respondent Nos.4 to 7 being the Plaintiffs filed an application before the Trial Court for making the preliminary decree final. In the suit, proceeding for passing the final decree, the report of the Amin Commissioner was accepted in part in respect of schedule ‘B’, ‘C’ and ‘D’ properties and the final decree in respect of the said properties were sealed and singed on 13.05.2022. Insofar as the properties Page 2 of 7 {{ 3 }} under schedule ‘E’, ‘F’ and ‘G’ are concerned as the Respondent Nos.2 to 4 (Plaintiffs) and the Appellants as well as the other Respondents except Respondent Nos.1 to 3 did not come forward to proceed further, they were given the liberty to proceed at subsequent point of time in that direction. The Appellants of the Appeal as at (A) had questioned the said final decree drawn in the suit on 13.05.2022 by carrying the First Appeal. The First Appellate Court has dismissed the Appeal. Hence these two Second Appeals; one as at ‘A’ at the instance of Defendant Nos.2 to 4 and the other one as at (B) at the instance of Defendant No.5 have come to be filed. 4. These Second Appeals have been admitted to answer the following substantial questions of law:- 1) Whether the First Appellate Court is right in accepting the final decree in respect of the properties described in Schedule ‘B’, ‘C’ and ‘D’ while remitting the matter to the Trial Court to continue with the final decree proceeding in respect of Schedule ‘E’, ‘F’ and ‘G’ properties is right in accepting the final decree insofar as the properties in schedule ‘B’, ‘C’ and ‘D’ are concerned? 2) Whether the First Appellate Court while confirming the final decree in respect of schedule ‘B’, ‘C’ and ‘D’ properties has committed grave error by ignoring the fact that the distribution insofar as the land under commercial Plot No.1619 is concerned was not in Page 3 of 7 {{ 4 }} consonance with the share allotted to the parties in the preliminary decree and then by completely ignoring the unequal distribution of the properties amongst the parties contrary to their respective shares of the parties as per the entitlement in consonance with the preliminary decree? 5. Heard Mr. B.B. Mishra-2, learned counsel for the Appellants of the Appeal as at (A), Ms. D. Nanda, learned counsel for the Appellant of the Appeal as at (B), Mr. A.K. Sarangi, learned counsel for the Respondent Nos.1 and 3 as also Mr. G.K. Parida, learned counsel for the Respondent Nos.4 to 6 have been heard at length. 6. As per the preliminary decree, three sons and three daughters of Balakrushna Sahoo have been made entitled to 1/6th share each over schedule B, C and D properties. It appears from the report of the Amin Commissioner that land measuring Ac.1.13 dec. has been allotted in favour of Suryamani Sahoo, Rakesh Kumar Sahoo, Baijayanti Sahoo and Jayanti Sahoo whereas Basanti Sahoo, Santilata Sahoo and Subasini Behera have been allotted with Ac.0.07 dec and that is said by the Appellants to be not in consonance with the preliminary decree. It is further seen that the Amin Commissioner allotted Plot No.260 measuring Ac.0.04 dec. and 264 measuring Ac.0.011 dec. out of Khata No.849 of schedule B entirely in favour of Basanti, Santilata and Subasini. Page 4 of 7 {{ 5 }} The Amin Commissioner in adopting the above course had sought for valuation of the land under schedule ‘B’, ‘C’ and ‘D’ properties. The report came to the effect that the valuation of Ac.0.001 dec. in respect of schedule ‘B’ under Plot Nos.570 and 264 is Rs.60,500/- whereas that of Plot No.260 is Rs.43,250/- and the valuation of Ac.0.001 dec. in respect of schedule ‘C’ under Plot No.1619 is Rs.77,000/- whereas the valuation of the agricultural land as at schedule ‘D’ measuring Ac.0.001 dec is Rs.22,000/- With respect to the location of the lands bearing chaka Plot No.40,795 and 1092, the valuation of one guntha is fixed at Rs.88,000/- The valuation of chaka Plot Nos.773 and 1054 is fixed at Rs.18,000/- and its valuation per guntha is fixed at Rs.72,000/- The Amin Commissioner has thereafter distributed the schedule ‘B’, ‘C’ and ‘D’ properties as under:- (a) The plot no.570 measuring area Ac.0.057 dec. was distributed among the Plaintiff No.1 and Defendant Nos.1,2,3,4 and Defendant No.5. The Plot No.264 and 260 was distributed among the Defendant Nos.6,7 and 8. (b) The commercial plot no.1619, measuring area Ac.0.081 dec. of schedule ‘C’ land was distributed among the three sons and three daughters equally. (c) Out of three chaka plots of schedule ‘D’ land, two chaka land were given to Defendant No.6,7 and 8 and one chaka land was given to the Plaintiff No.1 Page 5 of 7 {{ 6 }} and Defendant Nos.1,2,3,4 and Defendant No.5 but did not fragmented the said chaka plots. 7. It appears from the judgment of the First Appellate Court that the challenges advanced by these Appellants as to the said distribution of the properties under schedule B, C and D have been extensively deliberated upon and dealt with. It has come to a conclusion that when it was not possible to fix the quantum of land strictly in accordance with the share allotted to the parties in the preliminary decree, the valuation of the land being taken as the guide for distribution, there was no wrong in that, which is permissible. Accordingly when the distribution of the land has been made in favour of the parties looking at the valuation of the properties even though the extent does not remain strictly in accordance with the share allotted in the preliminary decree, the Courts below have accepted the Amin Commissioner’s Report. Having given a careful reading to the order passed by the Trial Court in making the preliminary decree final and the judgment of the First Appellate Court in refusing to interfere with the said final decree; this Court finds no such justifiable reason to take a view to the contrary in saying that the Courts below having passed the final decree have given a good bye to the preliminary decree and thereby, rewriting another preliminary decree has made that as final. Page 6 of 7 {{ 7 }} In so far as the partial passing of the final decree in respect of the schedule ‘B’, ‘C’ and ‘D’ properties are concerned leaving schedule ‘E’, ‘F’ and ‘G’ properties, this Court is also of the view that the Courts below in the factual scenario taking the turn due to the conduct of the parties did commit no mistake in saying that to be done at future point of time. 8. The above discussion and reasons thus provide the answer to the substantial questions of law which run in favour of the confirmation of the judgment passed by the First Appellate Court giving the seal of approval to the final decree passed in the suit in respect of the schedule ‘B’, ‘C’ and ‘D’ properties. 9. In the result, both the Appeals as at (A) and (B) stand dismissed. There shall, however, be no order as to cost. H Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 14-Nov-2023 18:49:20 (D. Dash), Judge. Page 7 of 7