Santosh Kumar Sahoo & Others vs Unknown
2023 Latest Caselaw 14393 Ori

               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 :::: Appellants.

-:: VERSUS ::-

       Basanti Sahoo & Others                                ::::    Respondents.

       RSA NO.276 OF 2023
       Debendra Kumar Sahoo                                  ::::    Appellant.
                         -:: VERSUS ::-
       Santosh Kumar Sahoo & Others                          ::::    Respondents.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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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 ... 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

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Date of Judgment: 05.10.2023 :: Date of Hearing: 13.11.2023

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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

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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

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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.

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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

and one chaka land was given to the Plaintiff No.1

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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.

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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.

(D. Dash), Judge.

H

Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 14-Nov-2023 18:49:20