NABA KUMAR SHAW Vs. SISIR KUMAR PAL

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves the impugned order dated 11.4.2017 passed by the learned Civil Judge, (Senior Division), First Court, Cuttack vide Annexure-3 involving Civil Suit No. 324 of 2016, an outcome involving consideration of a petition under Order 12, Rule 6 of the Code of Civil Procedure filed by the defendant.

(2.) Short background involves in the case is that the opposite party as plaintiff filed suit seeking partition of the suit schedule land with a case that the plaintiff as well as the defendant acquired the suit land jointly through a common sale deed and after purchase both of them have mutated their names before the Revenue Authority following which mutation record-of-right of Khata No. 861 was prepared in their names involving an area of Ac. 0.092 decimals. Plaintiff further pleaded that after purchase of the land, the plaintiff constructed his pucca residential house on its western side and residing therein whereas the defendant is in possession on the eastern side stated to have been lying vacant. Plaintiff has also a case that there is a common passage left on the southern portion of the suit land which runs in east-west direction having six feet in breadth. It is only when dissension arose among the parties, the plaintiff was constrained to seek partition on mutual understanding but on refusal by the defendant, the plaintiff came up with the suit. The defendant after appearance on admission of the fact that both the plaintiff and defendant have equal share over the suit land while remaining silent on the possession and construction part, pleaded in the plaint at the same time presented his written statement followed by a petition under Order 12, Rule 6 of the Code of Civil Procedure. In the first round of litigation when the application under Order 12, Rule 6 of the Code of Civil Procedure at the instance of the defendant stood rejected by order dated 20.9.2016 by the trial court, the petitioner-defendant preferred C.R.P.No. 29 of 2016 before this Court and on adjudication of the C.R.P. No. 29 of 2016 this Court directed as follows:

(3.) On remand of the matter by this Court, the petition under Order 12, Rule 6 of the code of Civil Procedure was taken up afresh and disposed of vide the impugned order thereby disposing the suit with a preliminary decree against the defendant but without cost further declaring the plaintiff and defendant have got 1/2 share over the suit schedule property. The parties were also directed to effect partition amicably amongst them within a period of two months hence, failing which they or either of them may approach the court to get their lands separately allotted to them in accordance with the defined shares. Being aggrieved by the above order, defendant preferred this Civil Miscellaneous Petition.