Orissa High Court
Smt. Swarnarekha Patnaik vs Jagadish Behera And Others ... Opposite ... on 31 October, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 06-Nov-2025 14:06:02
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1002 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Smt. Swarnarekha Patnaik .... Petitioner
-versus-
Jagadish Behera and Others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. D. Nanda, Advocate
For Opp. Parties : Mr. A.P. Bose, counsel for O.P.1 & 2
Mr. D. Mohapatra, Sr. Counsel along
with Mr. C. Panda, counsel for
O.P.10.
Ms. A. Tripathy, counsel for O.P.
No.3 & 5 - 7.
Mr. S.K. Rout, ASC for O.P. No.9
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
31st October, 2025
B.P. Routray, J.
1. Heard Mr. D. Nanda, learned counsel for the Petitioner, Mr.
A.P. Bose, learned counsel for Opposite Parties 1 and 2, Mr. D.
Mohapatra, learned senior counsel along with Mr. C. Panda, learned
counsel for Bhubaneswar Development Authority (O.P. No.10), Ms.
A. Tripathy, learned counsel for Opposite Parties 3 and 5 to 7 and
Mr. S.K. Rout, learned ASC for State - Opposite Party No.9.
2. Present CMP is directed against order dated 17th March 2025 of
learned 2nd Additional Senior Civil Judge, Bhubaneswar passed in
C.S. No.1567 of 2016, wherein the further proceeding of the suit has
been stayed upon pendency of the probate proceeding in Probate
Case No.27 of 2017, now pending before the same court.
3. Present Petitioner is the Plaintiff and it is contended on her
behalf that since the suit filed by her is not a partition suit
exclusively, the same is not required to be stayed for pending
probate proceeding. It is submitted by Mr. Nanda that the prayer for
partition of the suit property in favour of the Plaintiff is dependent
on the fact of cancellation of relinquishment deed allegedly executed
by her and therefore, this is not a fit case to stay proceeding of the
suit for pending probate proceeding.
4. Conversely, it is submitted by Mr. Bose, learned counsel for
Defendants 1 and 2 that reading of the reliefs sought by the Plaintiff
would indicate that present suit is for partition substantially and
further, the other daughters who are Defendants 3 to 7 have also
filed cross suit praying for partition in respect of the suit schedule
property. Therefore it cannot be said that the suit is not for partition
and as such the order of the trial court directing stay of further
proceeding cannot be termed as illegal.
5. Law is well settled that when a probate proceeding in respect of
the same property involved in a partition suit is pending decision, the
proceeding in the partition suit should wait the final decision of the
probate proceeding.
6. In Ashok Kumar Ray v. Smt. Reba Biswas and Others, AIR
2017 Orissa 48, this court relying on the case of Nirmala Devi v.
Arun Kumar Gupta and Others, (2005) 12 SCC 505 and Balbir
Singh Wasu v. Lakhbir Singh and Others, (2005) 12 SCC 503,
have held as follows:-
"9. Reverting to the facts of the case and keeping in view the
aforesaid principles, this Court finds that the suit schedule
property is the subject-matter of dispute in the partition suit
as well as probate proceeding. This jural relationship amongst
the parties inter se is finally decided in the preliminary
decree. The decision in the probate proceeding on the
question of proof of „Will‟ will have a direct impact on the
suit. The decision in the partition suit would also operate as
res judicata in the probate proceeding. In such contingency,
when both the proceedings are pending, the suit for partition
shall remain stayed till disposal of probate proceeding."
Further in Rajlaxmi Singh Deo v. Shivendra Narayan Bhanja Deo
and Another, 124 (2017) CLT 1071, the same view has been
reiterated.
7. In the case at hand since there is a dispute raised regarding
nature of the suit, it is important to reproduce the prayer of the
Plaintiff made in the plaint. The same reads as follows:
"20. Relief sought for:-
(A) Let a decree be passed declaring that the alleged
Deed of Relinquishment bearing No.6131 Dt: 06.06.2006 and
No. 4350 Dt.06.06.2006 are the outcome of fraud and
misrepresentation and not related to the suit property (Joint
Family Property)
(B) Let a Preliminary Decree for partition be passed
declaring one ninth (@1/9th) share-interest in respect of the
suit property under Schedule-A & B and building standing
over in favour of the each of the plaintiff and each of the
defendants No.l to No. 8. And the preliminary decree be
made final.
(C) Let the Civil Court Commissioner be directed to
effect partition by metes and bounds.
(D)Let a decree of permanent injunction be passed
against Defendant No.1 and No.2 restraining them from
collecting any rent from the tenants with respect to Schedule
A & B properties.
(E)Let a decree of mean profit in respect of collection of
rent and advances be passed against the defendants with
direction to deposit the said profit with interest at the rate of
Bankers lending rate.
(F) Let both the defendant No.9 and defendant No.10 be
directed not to cause any action basing on the alleged Deeds
of Relinquishments.
(G) Let any other direction / directions be passed as it
deems necessary, just and proper."
8. Here it is also important to mention that in the plaint averment at
paragraphs 14 and 15, it is admitted about execution of the Will
made by late Haramani Behera, wife of Jaladhara Behera on 20 th
December, 2016 in favour of Defendants 1 and 2 and a question is
raised regarding validity of such Will.
9. Said Will dated 20th December, 2016 as alleged at paragraph 15
of the plaint is undoubtedly the subject-matter of probate proceeding
in Probate Case No.27 of 2017. A bare reading of the reliefs claimed
by the Plaintiff in conjunction with paragraphs 14 and 15 of the
plaint would certainly demonstrate the nature of the suit as a
composite one including prayer for partition by questioning the
validity of the Will executed by late Haramani Behera. The property
that is covered under the Will pending adjudication in probate
proceeding No.27 of 2017 is admittedly a part of property covered in
suit schedule A and B property of the present suit in respect of which
the Plaintiff has prayed for 1/9th share in her favour. Therefore it is
seen that, since the property involved in the probate proceeding is
inseparable from the suit property and in exclusion of the same a
decree of partition cannot be effectively made in favour of the
parties in terms of the prayer of the Plaintiff, the suit can be treated
as a partition suit to attract the principles as stated in afore-cited
decisions.
10. Accordingly no merit is seen in the challenge of Petitioner to
interfere with the impugned order of learned trial court dated 17 th
March, 2025 under Annexure-12. The CMP is dismissed
accordingly.
( B.P. Routray)
Judge
M.K. Panda/P.A
