Orissa High Court
Sumitra Juadi & Others vs Parbati Bagarti & Others .... Opposite ... on 15 May, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.389 of 2025
Sumitra Juadi & others .... Petitioners
Mr. P.K. Satapathy, Advocate
-Versus-
Parbati Bagarti & others .... Opposite Parties
Mr. G.M. Rath, Advocate
for opposite party Nos. 1 & 2
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
15.05.2025
Order No.
01. 1. Heard Mr. Satapathy, learned counsel for the petitioners
and Mr. Rath, learned counsel for opposite party Nos. 1 and 2.
2. No notices are issued to other opposite parties as the same
is not necessary, hence, dispensed with.
3. Instant petition is filed by the petitioners assailing the
impugned decision by order dated 17th December, 2024 passed in
connection with FDTS No. 51 of 1986 by learned Senior Civil Judge,
Sonepur as at Annexure-1, whereby, an objection as per Annexure-9
to the report of the Amin Commissioner was rejected and further
leaving them and defendant No.9 without any physical division of
the share allotted to defendant No.1 among themselves.
4. Mr. Satapathy, learned counsel for the petitioners, namely,
defendant Nos.4 to 7 submits that such an objection was made
before the learned Court below by the petitioners and defendant
No.9 with regard to acceptance of the report of the Amin
Commissioner. It is further submitted that though there has been
allotment of respective shares inter se opposite party Nos.1 and 2
and defendant No.1, such share of defendant No.1 was further to be
physically carved out and distributed among the petitioners and
defendant No.9, which has not taken place and though, such
decision as per Annexure-1 is appealable in nature but practically an
effective decree has not been drawn up with necessary division of
the subject allotted to the share of defendant No.1 and hence,
necessary direction is required to be issued.
5. Mr. Rath, learned counsel for opposite party Nos.1 and 2
submits that in view of the judgment in S.A. No.291 of 2000 as at
Annexure-5, the allotment of share has been made between
opposite party Nos. 1 and 2 and defendant No.1 and therefore,
learned Court below did not consider further distribution among
the purchasers, namely, petitioners and defendant No.9. Mr. Rath,
would further submit that if in case, any such direction is issued to
the learned Court below in order to go for division vis-à-vis share
allotted to defendant No.1 among the purchasers, the allotment of
1/3rd share of opposite party Nos.1 and 2 should not be disturbed
having the report of the Amin Commissioner been received by
learned Court below in terms of the partition statement on record.
6. Having regard to the facts pleaded on record, as there is a
preliminary decree drawn up with the allotment of shares between
opposite party Nos.1 and 2 and defendant No.1, considering the
objection of the petitioners and limited grievance with regard to
further physical division of the share of defendant No.1 among them
and defendant No.9, the Court is of the view that accepting such
partition statement and without disturbing the possession of the
share allotted of opposite party Nos.1 and 2, learned Court below
should be directed to further divide and distribute carving out such
shares among the petitioners and defendant No.9 and thereafter, to
pass necessary order closing the final decree proceeding ultimately,
as the same would rather serve the purpose and meet the ends of
justice instead of directing the petitioners to challenge the impugned
order i.e. Annexure-1 in appeal.
7. Accordingly, it is ordered.
8. In the result, the CMP stands disposed of with the direction
as aforesaid. It is further directed that learned Court below without
affecting the possession vis-à-vis opposite party Nos.1 and 2 received
in terms of the partition statement of the Amin Commissioner shall
proceed to physically divide and distribute the share allotted to
defendant No.1 among the petitioners and defendant No.9 in terms
of the decree in the suit i.e. T.S. No.51 of 1986 and for the said
purpose, the final decree proceeding is restored to file.
9. In the circumstances, there is no order as to costs.
10. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
Balaram
