BANSIDHAR MOHANTY Vs. MADHUSUDAN MOHANTY

JUDGEMENT

(1.) The orders passed in Execution Case No. 10 of 2000 arising out of Title Suit No. 324 of 1989 of the Court of the Civil Judge (JD), Jajpur are challenged in these Writ Petitions. For the sake of convenience and also with consent of the Learned Counsel for the parties all the three Writ Petitions were heard together.

(2.) TO appreciate the controversy among the parties inter se, shorn of unnecessary details, the relevant facts involved in these Writ Petitions are as stated below: Madhusudan Mohanty, Opposite Party No. 1 in all the three Writ Petitions, had filed Title Suit No. 329 of 1989 in the Court of the Learned Civil Judge (JD), Jajpur praying for partition of the joint family properties. On 7th February, 1995 the Court below passed a preliminary decree in the said suit declaring fifty per cent share of Plaintiff -Madhusudan in the suit property. The said preliminary decree having not been challenged by any party in appeal, Plaintiff -Madhusudan filed an application before the Court below in the year 1997 for making the decree final. In the final decree proceeding, on 23rd April, 1997, an application was filed by Defendant No. 1 -Bansidhar Mohanty, the present Writ petitioner, to carve out his 1/4th share in the suit property. In consonance with the Code of Civil Procedure, a Civil Court Commissioner was deputed to the suit land who measured the same and made separate allotments in favour of the respective parties as per their shares and submitted his report to the Court along with a sketch map. It is pertinent to mention here that no objection was filed by any party to the suit and the Court below accepted the report of the Civil Court Commissioner and on that basis made the preliminary decree final on 26th March, 1999. Thereafter in the year 2000, present petitioner -Defendant No. 1 initiated the aforesaid Execution Case No. 10 of 2000 with a prayer to deliver possession of his 1/4th share in the suit property as per the allotment as indicated in the report and sketch map submitted by the Civil Court Commissioner, accepted in the final decree proceeding. After hearing the parties, the Court below issued writ of delivery of possession as prayed for. The writ was executed and possession of 1/4th share of the petitioner -Defendant No. 1 was delivered to him. Accepting the said allotments, on 6th December, 2004, Defendant Nos. 1 and Defendant Nos. 2 to 6 alienated parts of the respective properties allotted to them in the final decree proceeding in favour of each other. On 16th March, 2005 Defendant No. 4, after taking delivery of possession of his share, created disturbance in respect of the remaining properties which were allotted in favour of the Plaintiff -Opposite Party No. 1. Thereafter Plaintiff -Opposite Party No. 1 filed an application in the aforesaid Execution Case for delivery of possession of the suit property allotted in his favour in the final decree proceeding. Notice of the said petition filed by the Plaintiff -Opposite Party No. 1 was issued by the Court below to all parties. After receiving the aforesaid notice, Defendant No. 1 - petitioner filed W.P.(C) No. 10438 of 2006 challenging the order of the said Court directing issue of notice. He also filed an application under Section 47 of the Code of Civil Procedure before the Court below challenging executability of the decree. The said petition was registered as Misc. Case No. 215 of 2006. While matter stood thus, Defendant No. 1 -petitioner also filed another petitioner in the Execution Case with a prayer to permit him to withdraw the said Execution Case. The Court below by order dated 19th September, 2006 rejected the petition filed by the petitioner seeking permission to withdraw the Execution Case. Challenging that order dated 19th September, 2006, Defendant No. 1 -petitioner filed aforesaid W.P.(C) No. 13862 of 2006. During pendency of W.P.(C) Nos. 10438 of 2006 and 13862 of 2006, Defendant No. 1 -petitioner having tried to forcibly raise certain construction on the land allotted in favour of the Plaintiff -Opposite Party No. 1 in the final decree proceeding, a petition was filed by the Plaintiff -Opposite Party No. 1 before the Court below for granting him protection. The said petition was registered as LA. No. 201 of 2006. The Court below directed maintenance of status quo with regard to the suit property by the order dated 19 October, 2006. After hearing the Learned Counsel for the respective parties by order dated 7th November, 2006 the said Court rejected the application filed by Defendant No. 1 -petitioner under Section 47 CPC which was registered as Misc. Case No. 215 of 2006. Assailing the said order, the third Writ Petition, i.e. W.P.(C) No. 15308 of 2006 has been filed by Defendant No. 1 -petitioner.

(3.) MR . S.P. Das, Learned Counsel for the petitioner, assails the orders passed by the Court below rejecting the petition filed under Section 47 CPC and the petition filed for withdrawal of the Execution Case, mainly on the ground that while making allotment of shares among the parties as per the preliminary decree and preparing the sketch map, weightage ought to have been given to possession of each party. According to Mr. Das, the said cardinal principle of law having not been kept in mind the final decree passed by the Court below cannot be sustained and has become unexecutable. He further submitted that the respective shares of the parties were not properly demarcated by the Civil Court Commissioner as a portion of the residential house of Defendant No. 1 -petitioner and some other constructions raised by him were allotted in favour of Plaintiff -Opposite Party No. 1. He also submitted that in view of the aforesaid infirmity the sketch map forming a part of the final decree cannot be accepted and it is a fit case where the entire allotments made by the Civil Court Commissioner should be annulled and fresh allotment should be made after excluding the land, on which his dwelling house, bathroom, latrine etc. are existing and are in possession of Defendant No. 1 - petitioner, from the share of Plaintiff -Opposite Party No. 1. Mr. Das also submitted that on the land allotted in favour of Plaintiff -Opposite Party No. 1, three living rooms constructed by Defendant -petitioner up to lintel are there and if the land on which the said constructions raised by Defendant No. 1 -petitioner is allotted to Plaintiff -Opposite Party No. 1 great prejudice and irreparable loss will be caused to Defendant No. 1 -petitioner.