The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 923 OF 2023 Pradeep Kumar Pati …. Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. Jagajiban Pradhan, Advocate -versus- Pratap Chandra Pati and others Opp. Parties Mr. Amiya Kumar Mohanty, Advocate (For Opp. Party No.1) …. CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 05.09.2023 3. 1. This matter is taken up through hybrid mode. 2. Order dated 24th July, 2023 (Annexure-4) passed by learned Senior Civil Judge, Baripada in C.S. No.471 of 2010 is under challenge in this CMP, whereby learned trial Court accepted the report of civil court commissioner, wherein he suggested to demolish the incomplete structure over ‘C’ Schedule land and to divide the suit property equally into three parts. 3. It is submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioner that C.S. No.471 of 2010 was filed by the Opposite Party No.1 for partition and to pass a decree of mandatory injunction against Defendant No.1(a) to Defendant No.3 to demolish the incomplete building over ‘C’ Schedule land and also to permanently restrain the Defendants from alienating, changing the nature and character of the suit land. The suit was preliminarily decreed on contest vide judgment dated 7th January, 2017 with the following order: Page 1 of 5 // 2 // “The suit is decreed on contest against the defendants no. 1 (a) to 1 (h) and 2 and ex parte against the rest defendants with cost of Rs.5,000/- (Rupees Five Thousand Only) against the defendant no.2 Pradeep Kumar Pati. The RSD No.1759 Dt.22.06.2009 (Ext. B) is declared void and illegal. This Court directs Susama Pati, defendant no.3 and her husband, defendant no.2 Pradip Kumar Pati to demolish the structure, which they have erected over Schedule C lands of the plaint in the shape of the incomplete building, at their own cost within two months of this order, failing which the plaintiff is at liberty to get the order executed through process of law. The defendant no. 1 (a) to 1 (h) are directed mandatorily to act as per this decree and shall not interfere anyway in the process of mandatory injunction or execution thereof. All the defendants are permanently injuncted from changing or altering the nature and character of any part of the suit lands in any manner whatsoever. The suit lands under Ext.1 to Ext.7 will be partitioned in 1/3 share each for Gopinath Pati, Ramanath Pati and deceased Jagannath Pati. The 1/3rd share of deceased Jagannath Pati will be jointly taken by his L.R.s defendant no.1 (a) to 1(h). Gopinath Pati and Ramanath Pati each individually will get 1/3 share. The properties under Schedule C and Schedule D consisting of Gharabari lands and Ghara will also be partitioned in same proportion i.e. in 1/3 share each for Ramanath Pati, Gopinath Pati and the deceased Jagannath Pati. Schedule "B" lands of the plaint shall not undergo any partition. An Amin Commissioner shall be deputed at the cost of the plaintiff within three months from the date of this order to effect the pre- decree. The possession of the parties shall be given prime importance in effecting partition. In case of failure to do so any of the co-sharers is at liberty to approach this Court for a final decree. Pleaders fee be assessed on contested scale.” (underlined for emphasis) Since Defendant Nos.2 and 3 did not demolish the incomplete house over ‘C’ Schedule property within the stipulated date, Execution Case No.8 of 2022 was filed, which is pending for Page 2 of 5 // 3 // consideration. Simultaneously, a final decree proceeding was also initiated by the Decree Holder. At that juncture, the civil court commissioner (for short ‘the commissioner’) was deputed to work out the preliminary decree. The commissioner submitted his report stating that partition cannot be effected without demolishing the incomplete structure over ‘C’ Schedule land. The said report was accepted vide order under Annexure- 6. Hence, assailing the same, this CMP has been filed. 3.1 It is further submitted by Mr. Mishra, learned Senior Advocate that in the meantime, the Petitioner had filed RFA No.12 of 2017, which has already been dismissed on merit vide judgment dated 11th September, 2020. It is his submission that although a detailed objection/application to the report of commissioner was filed objecting acceptance of such report and the decree holder has also filed an objection to the same, learned trial Court without properly considering the objection filed by the Petitioner passed the impugned order under Annexure-6, accepting the report of the commissioner. It is his submission that if 3 feet of the incomplete house over ‘C’ Schedule property is demolished, a passage of 7 feet will be available to the decree holder to access the old house situated over the suit property. It is also submitted that the house constructed by the Petitioner is being demolished to give a passage to the decree holder to Plot No.188, which is being used as a public road. The said Plot No.188 though used as a road, but it stands recorded in the name of Scheduled Tribe person. It is further submitted that a direct access to Plot No.188 is also available from the old house towards northern portion of Plot No.172/739. These material Page 3 of 5 // 4 // aspects were not considered either by the commissioner or by learned trial Court while accepting the report of commissioner. Hence, the impugned order is liable to be set aside and the matter should be remitted to learned trial Court for fresh adjudication on the acceptability of Commissioner’s report. 4. Mr. Mohanty, learned counsel for the Opposite Parties submits that there is a clear direction for demolition of the incomplete house over ‘C’ Schedule property constructed by Defendant Nos.2 and 3. The said preliminary decree has been confirmed in RFA No.12 of 2017. Thus, any direction contrary to the same will amount to interfering with the appellate order as well as the preliminary decree, which is not permissible either in an execution proceeding or in a final decree proceeding. He, therefore, prays for dismissal of CMP. 5. This Court suggested both learned counsel for the parties to have a settlement between the parties amicably in the matter. 6. When Mr. Mishra, learned Senior Advocate for the Petitioner is agreeable to work out the possibility of settlement, Mr. Mohanty, learned counsel for the Opposite Parties-Decree Holder in consultation with Opposite Party No.13, who is present in Court, submitted that there is no possibility of amicable settlement in the matter as instructed by the Decree Holder. He, therefore, prays for disposal of CMP on its own merit. 7. Taking into consideration the rival contention of learned counsel for the parties, more particularly the preliminary decree and that the same has already been confirmed by learned 2nd Page 4 of 5 // 5 // Additional District Judge, Baripada in RFA No.12 of 2017, this Court is of the considered opinion that learned trial Court has not committed any error in accepting the report of the commissioner holding that ‘C’ Schedule property has to be demolished for working out an effective partition as per the preliminary decree. 8. In view of the above, the CMP being devoid of any merit stands dismissed. 9. The interim order dated 22nd August, 2023 passed in I.A. No.903 of 2023 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Sep-2023 11:00:51 Page 5 of 5