ARATI MOHANTY Vs. GHANASHYAM MOHAPATRA

JUDGEMENT

(1.) Instant appeal under Order XLIII Rule 1(u) read with Sec. 104 of the Civil Procedure Code, 1908 (hereinafter referred to as 'the CPC)' is filed by the appellant challenging the impugned order dtd. 17/10/2015 passed in R.F.A. No.5/46 of 2013/2009 by the learned 1st Additional District Judge-cum-Special Judge (Vigilance), Bhubaneswar, whereby, the matter was remanded to the court of leaned Civil Judge (Junior Division), Bhubaneswar on the following grounds:

(2.) The appellant filed the suit in T.S. No.294 of 1993 (C.S.No.487 of 2000) in the court of learned Civil Judge (Junior Division), Bhubaneswar seeking relief of declaration to the effect that the decree is T.S. No.52 of 1985 is not binding to her and right, title and interest over the suit land, confirmation of possession over the same besides a decree of injunction vis-a-vis defendant No.1 and defendant Nos.38 to 56 from interfering in such possession with an additional relief of rectification of the record of right in respect thereof or in the alternative, for partition of Plot No.737 and allotment of the purchased share in her favour.

(3.) The court of 1st instance decreed the suit of the appellant and declared her right, title and interest over the suit plot with the conclusion that there is no need for any partition. The maintainability of the suit in view of the objection of the defendant No.1 and others was rejected, inasmuch as, it was held that the same is not hit by Order XXI Rules 97 and 103 CPC. It was also held that the judgment and decree in T.S. No.52 of 1985 shall not bind the appellant since she was not impleaded therein despite her having acquired interest over the suit plot by way of purchase. The appellant is a vendee of the suit land from one of the co-sharers. As earlier stated, the suit was decreed in favour of the appellant on contest against defendant Nos.54 and 56 however without contest vis-a-vis other defendants and restrained defendant No.1 and defendant Nos.38 to 56 from interfering in the peaceful possession of the land by the appellant and for correction of the record of right. In other words, the alternate relief of partition had become redundant in view of the title declared in favour of the appellant.