Gopinath Nayak And Another vs Anam Charana Jena And Others
2023 Latest Caselaw 4891 Ori

                                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                CMP No. 389 of 2021
                                Gopinath Nayak and another                 ....       Petitioners
                                                                      Mr. S.S.K.Nayak, Advocate
                                                      -versus-
                                Anam Charana Jena and others               ....     Opp. Parties
                                                            Mr. Sanjay Kumar Pattanaik, Advocate
                                                                        (For Opposite Party No.1)
                                          CORAM:
                                         JUSTICE K.R. MOHAPATRA
                                                      ORDER

              Order No.                              02.05.2023

                 7.        1.      This matter is taken up through Hybrid mode.

2. Although the matter was listed for orders, on the consent of learned counsel for the parties, the same is taken up for final disposal.

3. Order dated 19th November, 2020 (Annexure-7) passed by learned Civil Judge (Senior Division), Anandpur in TS No.64 of 1996 (FD) is under challenge in this CMP, whereby an application filed by the Plaintiffs/Opposite Party Nos.1 to 3 praying, inter alia, to re-issue the writ to the Civil Court Commissioner for partitioning the 'Ka' schedule land, more particularly Plot No.2333 holding it to be Ac.0.12 decimal and allot half share to the Plaintiffs and rest half share to Defendant No.1 (Ka) to 1(Gha) along with other prayers.

4. Mr. Nayak, learned counsel for the Petitioners submits that TS No.64 of 1996 was filed by Opposite Party Nos.1 to 3 for partition, which was preliminarily decreed on 26th August, SASANKA Digitally signed by SASANKA 2006. The said preliminary decree was assailed in RFA No.58/ SEKHAR SEKHAR SATAPAT SATAPATHY Date: 2023.05.05

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54 of 2003-04. The said appeal was allowed vide judgment dated 11th November, 2005 and the decree was signed on 12th September, 2006. Accordingly, Final Decree proceeding was initiated. In the Final Decree proceeding, the Civil Court Commissioner returned the writ with a report that the area of Plot No.2333 has been wrongly mentioned in the Preliminary Decree. Although in the record of right, the area of Plot No.2333 is Ac.1.12 decimal, but in the preliminary decree it has been mentioned as Ac.0.12 decimal. In course of hearing of the petition, as aforesaid, the Plaintiffs/ Opposite Party Nos.1 to 3 prayed the Court to exclude Plot No.2333 from partition. Allowing such prayer, learned trial Court proceeded with the Final Decree proceeding.

4.1 It is submitted by Mr. Nayak, learned counsel for the Petitioners that since the Plot No.2333 has been included in the preliminary decree, exclusion of such plot will amount to partial partition, which is not permissible in law. As such, learned trial Court has committed any error in entertaining the prayer made by the Plaintiffs/Opposite Party Nos.1 to 3 by excluding Plot No.2333 from partition. He, therefore, prays for a direction to learned trail Court to correct the area of Plot No.2333 and to include the said Plot in the Final Decree proceeding for partition.

5. Mr. Pattanaik, learned counsel appearing for Opposite Party No.1 submits that he has no objection to the prayer made by learned counsel for the Petitioners.

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6. Considering the submissions made by learned counsel for the parties and on perusal of record, more particularly the impugned order, it appears that during course of hearing of the petition dated 30th October, 2019 filed by the Plaintiffs/Opposite Party Nos.1 to 3 for re-issue of the writ to the Civil Court Commissioner for partition of Plot No.2333 holding area it to be Ac.0.12 decimal, a prayer was made by the Plaintiffs/ / Opposite Party Nos.1 to 3 to exclude the said plot from partition. It also appears from the impugned order that previously an application was filed by the Plaintiffs/ Opposite Party Nos.1 to 3 for correction of area of Plot No.2333, which was rejected. It further appears that the Petitioners, who are Defendant No. 1(Ka) to 1(Gha) in the Final Decree proceeding, neither raised any objection to the report of the Civil Court Commissioner nor raised any objection to the rejection of the petition for correction of area of Plot No.2333 from Ac.0.12 decimal to Ac.1.12 decimal. Thus, by exclusion of such Plot, the Petitioners will no way be prejudiced. However, considering the undisputed fact that area of Plot No.2333 is Ac.1.12 decimal, this Court disposes of the CMP with a direction that in the event Petitioners file an application under Section 152 CPC, the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned. While disposing of the application, the court should keep in mind that an endeavour should be made for completing partition of the suit schedule property and the area mentioned in the preliminary decree was an inadvertent clerical error.

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7. With the aforesaid observation and direction, the CMP is disposed of.

8. Interim order dated 3rd November, 2021 passed in IA No.354 of 2021 stands vacated.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy