Orissa High Court
Surendra Nath Jena vs Manmath Kumar Malla & Others on 18 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA NO. 57 OF 2019
Surendra Nath Jena .... Appellant
Mr.A.K. Mohanty(A), Advocate
-versus-
Manmath Kumar Malla & Others .... Respondents
Mr.A. Nayak, Adv.(R.1 &2),
Mr. N.P. Parija, Adv. (R.3 & 4).
CORAM:
MR. JUSTICE D.DASH
ORDER
Order No. 18.10.2023
09. 1. This matter is taken up through hybrid arrangement
(virtual/physical) mode.
2. The Appellant by filing this Appeal under section-100 of
the Code of Civil Procedure (for short called 'the Code') has
challenged the judgment and decree passed by the learned District
Judge, Kendrapara in RFA No.44 of 2015.
The Respondent No.1 as the Plaintiff had filed Civil Suit
No.231 of 2012 seeking the relief of declaration that the registered
sale-deed dated 19.12.2011 executed by the Respondent No.2
(Defendant No.2) in favour of the Appellant (Respondent No.1) is
void and illegal with the alternative prayer to hold it valid to the
extent of the share of Respondent No.2 (Defendant No.2) and
others and to direct the Appellant (Defendant No.1) to execute the
sale-deed in favour of the Respondent No.1 (Plaintiff) in respect of
his legitimate share to the extent of Ac.0.06 decimals 2.5 links for
just and proper consideration as would be determined with further
prayer of permanent injunction.
3. The suit stood decreed by the following orders:-
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"That the suit of the plaintiff be and the same is decreed on
contest against the defendants, but considering the facts and
circumstances without cost. It is hereby declared that the
registered sale deed No.10931104224 dated 19.12.2011 is
valid to the extent of the share of defendant no.2 i.e. 1/4th
share of the suit schedule land and the plaintiff has
preferential right to repurchase the share of defendant no.2
i.e. to the extent of Ac.0.06 decimals 2.5 links from
defendant no.1 for a consideration of Rs.18,925/- (Eighteen
Thousand Nine Hundred Twenty Five) only and the
defendant no.1 is permanently restrained to come over the
suit schedule land. The defendant no.1 is directed to
execute a registered sale deed with respect to the suit land
to the extent of Ac.0.06 decimal 2.5 links in favour of the
plaintiff for a consideration of Rs.18,925/- (Eighteen
Thousand Nine Hundred Twenty Five) only within a period
of three months hence, failing which the plaintiff is at
liberty to get execute the sale deed as indicated above
through process of Court."
4. The Appellant being the aggrieved Defendant No.1
(Appellant) having carried the Appeal under section-96 of the Code
has been unsuccessful. He, therefore, has filed this Second Appeal
as against the judgments and decrees passed by the Courts below
running against him.
5. Earlier an application (I.A. No.995 of 2023) had been filed
by the Respondent No.1 (Plaintiff) annexing an agreement to have
been entered into between the parties. It had been prayed therein
that in terms of the compromise arrived at, the Second Appeal be
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allowed and the judgments and decrees passed by the Courts below
be set at naught. When that application was pending another
application vide I.A. No.1116 of 2023 had been filed by the
Respondent Nos.3 and 4 (Defendant Nos. 3 & 4) praying that they
be heard before passing any order in I.A. No.995 of 2023 on
10.10.2023. This Court having said that the prayer made in the I.A.
No.995 of 2023 is not acceptable, thus had left the question upon to
be considered during hearing of this Appeal.
Today, the Respondent No.1 (Plaintiff) is present so also
Mr. A.K. Mohanty, learned Counsel for the Appellant (Defendant
No.1), Mr. N.P. Parija, learned Counsel for the Respondent Nos. 3
and 4 and Mr. Abinash Nayak, learned Counsel for the Respondent
No.1 (Plaintiff) and Respondent No.2 (Defendant No.2).
6. The Plaintiff being present in person submits that he does
not want to press the decrees standing in his favour any more into
service.
Learned Counsel for the Appellant (Defendant No.1) at this
stage submits that he be granted some time to take further steps in
the matter for giving a decent burial to the lis in terms of desire of
the parties by filing proper application under appropriate provision
of law.
7. The Appeal be listed on 7th November, 2023.
(D. Dash),
Signature Not Verified Judge.
Digitally Signed
Narayan
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 19-Oct-2023 19:47:56
