Pravakar Sahu vs Susama Tripathy & Others
2021 Latest Caselaw 9388 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              RFA No.221 of 2010


            Pravakar Sahu                        ....         Appellant
                                        Mr.B.H. Mohanty,
                                        Mr. D.P. Mohanty,Advocates
                                        & Associates

                                       -versus-
            Susama Tripathy & Others            ....         Respondents
                                   Mr.T. Ku. Mishra, Advocate
                                   & Associates (for Respondent No.27)
                                     Mr. S.K. Pattnaik, Advocate
                                     (for Respondent Nos. 1,3 to 8,
                                      10 to 17 and 20)


                     CORAM:
                     MR. JUSTICE D.DASH
                                     ORDER

08.09.2021 RFA No. 221 of 2010 & Order No. I.A. No.95 of 2021

07. 1. This matter is taken up through hybrid arrangement (virtual/physical mode).

2. The sole Appellant arraigned as the Defendant No. 26 in the Suit, by filing this Appeal has challenged the judgment and preliminary decree passed by the learned Civil Judge (Senior Division), Banki in C.S. No. 21 of 2007.

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The order is reproduced below:-

"That the suit be and the same is decreed preliminarily in part on contest against defendant no. 25 and defendant no. 26 and ex parte against the other defendants but in the facts and circumstances of the case without any cost. The plaintiff and defendant no. 1 and 2 are entitled 1/7th share each, whereas the defendant No. 25 and defendant No. 20 to 24 are entitled to 1/7th share each, defendant No. 14 to 19 are entitled to 1/7th share and defendant no. 3 to 13 are entitled to 1/7th share of the suit schedule properties. The share of defendant no. 20 to 24 and defendant No. 25 shall be allotted to defendant no. 26 being purchaser of their interest. The registered sale deed bearing no. 1071 dt.20.7.2007 is valid to the extent of the share of defendant no. 20 to 24 and defendant no. 25. Further the defendants are restrained no to alienate the suit property till partition is effected by metes and bounds. The defendant no. 26 is directed to remove the constructions over the suit property excluding the constructions made over 2/7th share of the property allotted to him by his vendors (defendant no. 20 to 24 and defendant no. 25) within two months hence. The parties are directed to effect partition on the above ratio amicably within two months in default of which any of the parties to the suit can take the help of the court for deputation of a Survey Knowing Commissioner to effect the partition."

3. In order to avoid confusion and bring in clarity; the parties hereinafter have been referred to as they have been arraigned in the Suit. It is pertinent to mention here that during pendency of this Appeal, the Defendant No. 1 (Nirupama Mohapatra) having sold some properties to one Subhashree

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Pradhan; she for the first time has come to the arena of the lis being arraigned as Respondent No. 27 in this Appeal and therefore, she for the sake of convenience is hereinafter referred to as 'the Defendant No. 27'. Essentially, she has stepped into the shoes of the Defendant No. 1 for all practical purpose more particularly, when the Defendant No. 1 is not disputing the sale to have been so made by her. It may also be indicated at this stage that the Defendant No. 26 who is the Appellant had been arraigned as the party in view of his purchase of the lands from Defendant Nos. 20 to 25.

Presently, here in this Appeal the Plaintiff and Defendant Nos. 2 to 19 and Defendant No. 26 have filed this application under Order 23 Rule 3 of the Code.

4. Mr. D.P. Mohanty, learned counsel for the Defendant No. 26 and Mr. S.K. Pattanaik, learned counsel for the Plaintiff and Defendant Nos. 2 to 13 being physically present in Court today submit all in favour of the averments taken in the compromise application supported by affidavits of the parties thereto. They submit that the parties to the compromise have amicably settled their inter se dispute and the terms and conditions arrived at for the purpose have been so reflected therein which having been read over and explained to them they have signed having so found the contents to have been correctly written as per their instructions. They being so authorized admit the compromise on behalf of said parties. It is submitted by them that in view of the compromise the share of

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the Defendant No. 1 as allotted in the preliminary decree is remaining untouched. They further submit that in view of the compromise the share of Defendant Nos. 14 to 19 as also the share of the Defendant Nos. 20 to 24 and that of Defendant No. 25 would go to the hands of Defendant No. 26. It is submitted that in terms of compromise, the Plaintiff has relinquished her share and interest over the property in favour of the other Defendants as indicated therein and therefore, the same would now go to their hands. It is submitted that the vendors of the Defendant No. 26 as also the Defendant No. 26 are not disputing the allotment of the share as has been made by the Trial Court in favour of the parties and by accepting such allotment, the compromise has been arrived at. They submit that the compromise arrived at is in the best interest of the parties and is wholly lawful.

5. Mr. T.K. Mishra, learned counsel for the Defendant No. 27 does not dispute the position that said Defendant No. 27 has come on record for the first time in the Appeal in view of her lawful purchase of the property from Defendant No. 1 for valuable consideration. It is submitted that in view of the compromise arrived at between the parties, the share of Defendant No. 1 remains undisturbed. He also submits that when said Defendant No. 1 is not disputing and rather admitting the sale in favour of the Defendant No. 27, it goes without saying that the purchase of land made by Defendant No. 27 would stand valid to the extent of land purchased by

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Defendant No. 27 standing to be adjusted from out of and towards the allotted share of Defendant No. 1 as would be worked out in detail in the field in the final decree proceeding if so initiated by the parties.

6. Keeping in view of the submissions made, I have gone through the averments taken in the compromise application. I have also perused the impugned judgment and the preliminary decree passed by the Trial Court.

7. Taking into account the submission made and having undertaken the exercise as aforesaid; this Court finds no such reason or justification to say that the compromise is not lawful and is also of the view that even though the Defendant No. 1, Defendant Nos. 20 to 24 and Defendant No. 25 and Defendant No. 27 have not put in their hands in the application for compromise; in view of their stand in the suit; they are not going to be in any way adversely affected by the compromise as placed.

8. In that view of the matter, the Appeal stands finally disposed of in terms of compromise and the rest part not so covered in the compromise application would stand governed by the preliminary decree which to that extent shall remain undisturbed. The compromise application shall now form a part of the preliminary decree. Accordingly, it is observed that in the event the final decree proceeding is levied, the remaining part/s of the matter would be so worked out in detail in the field.

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With all the aforesaid, the Appeal and the I.A. stand disposed of. No order as to cost is passed.

Issue urgent certified copy as per rules.

(D.Dash) Judge

Aksethy