GOMA KHAN Vs. HAIDAR KHAN

JUDGEMENT

(1.) The order dated 29.8.2009 passed by learned Addl. Civil Judge (Senior Division), Balasore in F.D. No.143/1998-1 is challenged in this writ petition.

(2.) The plaintiff filed the original suit for partition of the suit land. The suit was decreed preliminarily specifying the share of the plaintiff and defendants as per the judgment dtd.14.3.2005. It is further revealed from the record that after passing of the preliminary decree the plaintiff initiated the final decree proceeding for allotment of his share. During pendency of the said final decree proceeding, the plaintiff came to know that Kabil Khan has sold his entire share in "Ga" schedule land to Sabar Khan and Akbar Khan by means of a registered sale deed No.608 dated 1.3.1933 and also delivered possession of the land on receiving the consideration amount from the Vendee and made them absolute owners thereof. It was further averred by the plaintiff that he obtained the certified copy of the registered sale deed on 31.3.2007 and handed over the same to his counsel, who kept it in his file. At the time of preparation for hearing of the final decree proceeding, this fact came to the knowledge of his Advocate on 15.4.2009, after which the petition was filed seeking direction from the court to specify the share to 3/8th in favour of the plaintiff and defendant nos.1 to 11 and 1/4th share in favour of defendant nos.18 to 21 in "Ga" schedule land. It is specifically pleaded that as per the registered sale deed dated 1.3.1933 Kabil Khan has alienated his share in favour of Sabar Khan and Akbar Khan in plaint "Ga" Schedule property and as such the legal heirs of Kabil Khan are not entitled to get share in "Ga" schedule land. Hence, defendant nos.12 to 17 being the legal heirs of Kabil Khan, have no share in "Ga" schedule property as a result of which the plaintiff is entitled to get 3/8th share in "Ga" schedule land. Therefore, the plaintiff prayed for specification of the share in the preliminary decree. Hence, he prayed that necessary orders may be passed specifying share of the plaintiff as stated above. The petition came up for disposal before learned Addl. Civil Judge (Sr. Division), Balasore. As per order dated 29.8.2009 the learned Addl. Civil Judge (Sr. Division) rejected the application on the ground that at the stage of final decree proceeding, redetermination of share can not be made.

(3.) In assailing the order passed by learned Addl. Civil Judge (Sr. Division), Balasore, learned counsel for the petitioner relies on the reported case of Bhagabati Sahu and others Vs. Trilochan Sahu and after him Lakhpati Sahu and others,1989 2 OrissaLR 174; wherein this Court has held that a Court may take into consideration all subsequent events from time to time and make enquiries and pass preliminary decrees as those are necessary in the interest of justice and for just disposal of the disposal of the case. It is further held that properties liable for partition can be added at any stage.