[Cites 1, Cited by 0]
Orissa High Court
Unknown vs Parsuram Mohapatra And Others on 18 December, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 51 of 2025
[In the matter of an appeal under Section 100 of the Code of
Civil Procedure, 1908 from the judgment and decree dated
22.08.2024 and 28.08.2024 respectively passed in RFA
No.06 of 2022 by the 3rd Addl. District Judge arising out of
the judgment followed by decree dated 23.12.2021 passed
in C.S. No.445/92(F.D.) by the Civil Judge (Junior
Division), Balasore]
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AFR Sushil Kumar Pradhan and Anr. ...... Appellants
-Versus-
Parsuram Mohapatra and others ..... Respondents
Advocate(s) appeared in this case :-
________________________________________________________
For Appellants : M/s.Bhaskar Chandra Panda,
S. Mishra, J.N. Panda, A. Tripathy,
A. Mishra & H.S. Sarangi, Advocates
For Respondents : None
__________________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
18 December, 2025
SASHIKANTA MISHRA, J.
This is a defendants' appeal against a
conforming judgment. The judgment passed by the First
Appellate Court in RFA No.06 of 2022 on 22.08.2024
followed by decree is impugned, whereby the order passed
by the Trial Court in drawing of the final decree pursuant
to the preliminary decree passed in T.S. No. 445 of 1992-1
by learned Civil Judge (Jr. Division), Balasore was refused
to be interfered with.
2. For the sake of convenience, the parties are
referred to as per their respective status in the trial Court.
3. The facts of the case, briefly stated, are that the
suit schedule property was recorded in the name of Kandu
Khuntia in the current settlement of the year 1927. He
transferred the same in favour of one Hiralal Dey vide
registered sale deed dated 15.10.1941. On death of Hiralal,
his successors were possessing the land. On 14.10.1969,
the son of Hiralal transferred the land in favour of the
defendants through registered sale deed and delivered
possession. On 07.10.1978, the mother of the plaintiffs,
Radhamani Mohapatra purchased eastern half of the suit
land under registered sale deed to the extent of Ac.0.13 dec.
and was in possession thereof since then. After death of
Radhamani, the plaintiffs are in possession. The
defendants have their land on the western side of the suit
land. During the major settlement, Radhamani had
requested the settlement authority to record her name
separately but the defendants in connivance of the
settlement authorities managed to record the suit land in
their names exclusively. Further, the defendants threatened
to cut the trees planted on the suit land on 18.06.1992.
Hence, the suit for partition and permanent injunction.
4. The defendants filed written statement denying
the plaint averments. They took the plea that on
07.10.1978, they transferred the land corresponding to Hal
MS Plot No.262 Sarad. The description given by the
plaintiffs corresponding to Khata No.239 and 268 is not
proper. It was further claimed that the plaintiffs have never
been in possession within 12 years from the date of
execution of the sale deed and hence, have no title.
5. Basing on the rival pleadings, the trial Court
framed the following issues for determination.
"1. Is the suit maintainable?
2. Whether the plaintiffs have right, title, interest
over the suit land in respect of 'Ka' schedule which
was purchased under Regd. Sale deed dt.7.1.78?
3. Whether the defendants have any right, title,
interest over the suit land and entitled to any share
thereof?
4. To what other relief, the parties are entitled to
get?"
6. Taking up issue Nos.2 and 3 at the outset, the
trial Court found that the plaintiffs proved the purchase of
land by their mother vide the sale deed marked Ext-2. Said
sale deed was executed by the defendants. They could not
prove that the same was fraudulently obtained. The Trial
Court thus, found that CS Plot No.122, Khata No.262
corresponds to MS Plot No. 239 under Khata No.268 out of
which they are entitled to get Ac.0.13 dec. towards eastern
side and the remaining Ac.0.13 dec. towards western side is
to fall to the share of the defendants. The suit was thus,
decreed preliminarily by holding that the plaintiffs and
defendants are to get Ac.0.13 dec. of land towards eastern
and western side respectively along with permanent
injunction against the defendants. Be it noted that the
preliminary decree was not challenged. The plaintiffs filed
final decree proceeding on 19.03.2014 whereupon the trial
Court directed the Commissioner to submit his report.
Accordingly, the Commissioner submitted his report,
allotment sheets and sketch map on 15.11.2021,
whereupon the report was accepted and the preliminary
decree was made final.
7. The defendants preferred First Appeal contending
that the final decree is not correct being contrary to the
principles of law and equity. It was mainly contended that
the report of the Commissioner should not have been
accepted. There is variance in the description of the suit
land mentioned in the preliminary decree and the
Commissioner's report. The First Appellate Court, after
hearing the objections, found that before accepting the
Commissioner's report the Trial Court had called for
objection from the defendants. It was further found that the
defendants not having challenged the preliminary decree
cannot challenge the final decree. The appeal was thus,
dismissed. Being aggrieved, the present Second Appeal has
been filed by the defendants.
8. Heard Mr. B.C. Panda, learned counsel for the
defendant-appellants.
9. Mr. Panda argues that the First Appellate Court
committed error in holding that the Trial Court had invited
objection from the defendants before accepting the report of
the Commissioner and therefore, its acceptance is not
justified. He further argues that in view of difference in suit
plot numbers, the final decree must be held to be contrary
to the preliminary decree.
10. This Court has given its anxious considerations
to the contentions raised and has also perused the
impugned judgments.
11. Perusal of the preliminary decree reveals that the
trial Court categorically held that the plaintiffs are entitled
to get Ac.0.13 dec. of land towards eastern side in CS Khata
No. 122, Plot No.267 and that the defendants are entitled to
get Ac.0.13 dec. towards western side out of CS Khata
No.122 under CS Plot No.267. There is thus, no ambiguity
in the allotment. There is no dispute that the suit land
measured Ac.0.26 decs in Sabik ROR but was Ac.0.21 dec.
in the major settlement. The Commissioner proceeded to
the spot and measured the land with the map and found
that MS Plot No.258 comprised an area of Ac.0.26 dec. The
government having acquired Ac.0.12 dec. out of the share
of the plaintiffs, they were therefore, allotted Ac.0.01 dec.
while the defendants were allotted Ac.0.13 dec. to the
western side. This is entirely in consonance with
preliminary decree.
12. As regards non-inviting of objection to the report
of the Commissioner, the First Appellate Court has held
that the report of the Commissioner was received on
18.11.2021 and the matter was posted for filing of objection
but no objection was filed. Accordingly, the report was
accepted on 23.12.2021. Thus, both the grounds urged by
Mr. Panda are found to be without any basis.
13. Thus, from the foregoing discussion, this Court
finds nothing wrong in the impugned order so as to be
persuaded to admit the appeal for hearing. Moreover, no
substantial question of law is involved.
14. In the result, the appeal is dismissed being not
admitted.
.............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 18th December, 2025/ A.K. Rana, P.A.
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Dec-2025 17:45:42
