Orissa High Court
Mohan Soren @ Majhi And Others vs Parbati Majhi @ Marndi And Others .... ... on 1 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Dec-2023 17:50:37
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1229 OF 2023
Mohan Soren @ Majhi and others .... Petitioners
Mr. Anjan Kumar Biswal, Advocate
-versus-
Parbati Majhi @ Marndi and others .... Opp. Parties
Mr. Swarup Kumar Patnaik, Advocate
(For Opposite Party Nos.1 to 4)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.12.2023
1. 1. This matter is taken up through hybrid mode.
2. Petitioners in this writ petition seek to assail the order
dated 25th August, 2023 (Annexure-7) passed by learned 2nd
Additional District Judge, Baripada in Civil Revision No.3 of
2023, whereby dismissing the Revision, it confirmed the order
dated 21st February, 2023 (Annexure-5) passed by learned
Senior Civil Judge, Baripada in FDCS No.59 of 2007 (arising
out of CS No.59 of 2007) allowing an application under Order I
Rule 10 CPC.
3. It is submitted by Mr. Biswal, learned counsel that CS
No.59 of 2007 was filed by Bali Majhi and Fula Majhi for
partition. The suit was decreed preliminarily vide judgment
dated 24th September, 2012 (Annexure-1). During pendency of
the Final Decree proceeding in FDCS No.59 of 2007, the
Plaintiff No.2-Fula Majhi died for which Bali Majhi filed an
application to delete her name stating that she was issueless.
Digitally Signed // 2 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Dec-2023 17:50:37
Considering the prayer of Plaintiff No.1, the name of Fula Majhi
was deleted and the Final Decree proceeding continued.
Subsequently, Opposite Party Nos.1 to 5 styling themselves as
the legal heirs of one Meghray Marndi filed an application under
Order I Rule 10 CPC to be impleaded as parties to the Final
Decree proceeding stating that said Meghray Marndi is the son
of deceased Fula Majhi. In support of their case, the Opposite
Party Nos.1 to 5 filed voter card and adhar card, which disclosed
that they are the legal heirs of Meghray Marandi. But there is
nothing on record to show that Meghray Marndi is the son of
Fula Majhi. Plaintiffs belong to ST community and there is
similarity in their names. But in absence of any material to show
that Meghray Marndi, is the son of Phula Majhi and there being
no concrete material to show that Opposite Party Nos.1 to 5 are
in fact the widow and sons of said Meghray Marndi, learned trial
Court should not have allowed the petition. However, the
petition under Order I Rule 10 CPC was allowed vide order
dated 21st February, 2023 (Annexure-5). Assailing the same,
Petitioners preferred Civil Revision No.3 of 2023 and the
impugned order under Annexure-7 has been passed.
3.1 It is his submission that the Plaintiff No.1 had filed
objection to the petition under Order I Rule 10 CPC stating that
there is no material on record to show that Meghray Marndi is
the son of Phula Majhi, but the same was not taken into
consideration by any of the Courts. Hence, he prays for setting
aside the impugned orders under Anenxures-5 and 7.
Digitally Signed // 3 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Dec-2023 17:50:37
4. Mr. Patnaik, learned counsel for Opposite Party Nos.1 to
5 submits that after death of Fula Majhi, Plaintiff No.1 without
intimating Opposite Party Nos.1 to 5 filed a memo stating that
Fula Majhi died issueless. In fact, Fula Majhi had a son, namely,
Meghray Marndi, who had pre-deceased said Fula Majhi leaving
behind Opposite Party Nos.1 to 5 as her legal heirs. Documents
have been filed before learned trial Court stating that Opposite
Party Nos.1 to 5 are the legal heirs of said Meghray Marndi.
Learned trial Court applying the provisions of Order XXII Rule
10 CPC, allowed the application. Hence, there is no illegality in
the impugned orders under Annexures-5 and 7. He, therefore,
prays for dismissal of the CMP.
5. Considering the submissions made by learned counsel for
the parties and on perusal of record, it appears that although
there are some materials to show that Opposite Party Nos.1 to 5
are the legal heirs of Meghray Marndi. But there is absolutely no
material on record to show that Meghray Marndi was the son of
Fula Majhi/Plaintiff No.2. In absence of such material, it is
unsafe to allow the application under Order I Rule 10 CPC.
Since Opposite Party Nos.1 to 5 claimed that they succeeded to
deceased Fula Majhi, this Court feels that the matter requires
fresh consideration.
6. In view of the above, this Court sets aside the impugned
orders under Annexure-5 and 7 and remit the matter to learned
Civil Judge (Senior Division), Baripada to make an enquiry in
the spirit of Order XXII Rule 5 CPC to determine as to whether
Opposite Party Nos.1 to 5 are the legal heirs of deceased
Digitally Signed // 4 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Dec-2023 17:50:37
Plaintiff No.2 giving opportunity of hearing to the parties
concerned and thereafter proceed with the Final Decree
proceeding. Parties are directed to cooperate with learned trial
Court.
7. With the aforesaid observation, the CMP is disposed of.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satpathy
