KABITA ACHARYA Vs. BASANTA KUMAR LAYAK AND OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 27.4.2015 passed the learned Civil Judge (Senior Division), Keonjhar in Execution Case No.32 of 2010, whereby and where under, the learned trial court allowed application of the plaintiff under Sec. 4 of the Partition Act and directed defendant no.13/J.Dr. no.12, petitioner herein to execute the registered sale deed in respect of the suit schedule property in favour of the plaintiff at the prevailing market price and to bear the registration cost.

(2.) Shorn of unnecessary details, the short facts of the case is that opposite party no.1 as plaintiff instituted T.S.No.90 of 2000 in the court of the learned Civil Judge (Senior Division), Keonjhar for partition impleading opposite parties 2 to 14 as well as the petitioner as defendants. The petitioner was defendant no.13. The suit was decreed preliminarily on 3.5.2003 by declaring ?th share of each of the plaintiff and defendant nos.1-6 with a further declaration of partition and that the inter se transfers and the extent of such transfers shall be adjusted from the respective shares of the plaintiff and defendants 1 to 6. There was a further direction that the interest of the purchasers and donees shall be restricted to the extent of specific share of land of their respective vendors. The preliminary decree was made final on 4.10.2010. Thereafter defendant nos. 3 and 7 levied Execution Case No.32 of 2010 for delivery of possession of their allotted landed property as per the final decree. While the matter stood thus, the plaintiff filed an application under Sec. 4 of the Partition Act praying for a direction to defendant no.13/J.Dr.12 (petitioner herein) to re-transfer the property, which was purchased from D.Hr. No.1 by means of a registered sale deed dated 10.4.1990 in his favour on the consideration fixed by the court. It is stated that defendant no.13 was impleaded as a party to the suit, since she has purchased a part of the suit property from defendant no.3. The defendant no.3 levied execution case. The property purchased by defendant no.13 has been included in the share of defendant no.3. The same is a homestead and is a part and parcel of the joint family residential property of the plaintiff. The property has the potentiality of being used as the residential property and dwelling house of the family of the plaintiff. The plaintiff had filed an application for making the preliminary decree final. A Civil Court Commissioner was deputed for effecting physical partition of the properties. Accordingly, the Civil Court Commissioner had conducted field enquiry, prepared allotment sheets along with sketch map separately allotting different part of the suit properties in favour of the plaintiff and the defendants. In the said allotment, the property purchased by defendant no.13 has been allotted in her favour under khata no.58, plot no.508/5 area A0.015 dec. After the said allotment, defendant no.3 levied execution case for delivery of possession of the properties allotted in his favour. As the preliminary decree stipulates that the interest of the purchasers shall be restricted to the extent of the respective shares of land of their respective vendors, the prayer for execution of the final decree has the effect of his purchaser i.e. defendant no.13 seeking for physical partition of her purchased property and taking separate delivery of possession of the same from the entire suit property. The J.Dr.12 transferee filed objection stating therein that the plaintiff has not challenged her title and possession. The petition has been filed to protract the litigation. The suit land is Gharabari and a house is standing thereon. Thus, the question of preemption does not arise. The plaintiff was silent from the date of sale deed and delivery of possession knowing fully well about the sale of the suit land and admitting her title and possession over the same. After engorssment of final decree in stamp papers, the property is not the joint family property. The learned trial court, placing reliance on a decision of the apex Court in the case of Ghantesher Ghosh Vs. Madan Mohan Ghosh and others, AIR 1997 SC 471, allowed the application.

(3.) Heard Mr.Soumya Mishra, learned Advocate for the petitioner and Mr.Manoranjan Mishra, learned Advocate for opposite party no.1. None appeared for opposite parties 2 and