Orissa High Court
Smt. Mahunadi @ Mahanandi @ Mahanadi … vs Smt. Satyabhama Panda & Others on 17 January, 2025
ORISSA HIGH COURT : CUTTACK
S.A. No.296 of 1998
In the matter of an appeal under Section 100 C.P.C, 1908.
***
Smt. Mahunadi @ Mahanandi @ Mahanadi Devi @
Upadhyaya (dead) & Others … Appellants.
-VERSUS-
Smt. Satyabhama Panda & Others … Respondents.
Counsel appeared for the parties:
For the Appellants : Mr. S. Mantry, Advocate.
For the Respondents : Mr. N. Panda-1, Advocate.
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERADate of Hearing : 16.01.2025 :: Date of Judgment : 17.01.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.–
1. This 2nd Appeal has been preferred against the
confirming Judgment.
S.A. No.296 of 1998 Page 1 of 24
2. The appellant in this 2nd Appeal i.e. Mahanadi Devi was
the defendant No.1 before the Trial Court in the suit vide O.S.
No.15 of 1991-I and sole appellant before the 1st Appellate
Court in the First Appeal vide T.A. No.14 of 1993.
The respondents in this 2nd Appeal were the plaintiffs
and defendant Nos.2 to 8 before the Trial Court in the suit
vide O.S. No.15 of 1991-I and respondents before the First
Appellate Court in the 1st Appeal vide T.A. No.14 of 1993.
3. The suit of the plaintiffs (respondent Nos.1 to 4 in this
2nd Appeal) against the defendants (appellant and respondent
No.5 to 11 in this 2nd Appeal) vide O.S. No.15 of 1991-I was a
suit for partition and for re-purchasing homestead properties
under Section 4 of the Partition Act, 1890.
4. According to the plaintiffs, they (plaintiffs) and
defendants are Hindus and they are guided and governed by
Mitakshara School of Hindu Law.
In order to have an instant reference, the genealogy given
by the plaintiffs in their plaint is depicted hereunder:
S.A. No.296 of 1998 Page 2 of 24
Genealogy
Kushei Panda
Bhagaban Bhagabat Sadananda Gadadhara Harihar
Mandodari
JadiKrushna Suma Bhaskar (D.2)
(Daughter)Khetramohan Krupasindhu Dinabandhu
Sadhabani Madhab
(P.2) (D5)Satyabhama Rukmani Monorama Karunakar Mayadhar Ratnakar
(P.1) (D.3) (D.4) (P.3) (P.4) (D.8)As per the aforesaid genealogy given by the plaintiffs in
their plaint, Kushei Panda was their common ancestor.
Kushei Panda died leaving behind his 5 sons i.e. Bhagaban,
Bhagabat, Sadananda, Gadadhar & Harihar. The 3rd and 4th
son of Kushei Panda i.e. Sadananda and Gadadhar died
issueless. Accordingly, their branches extinct.
S.A. No.296 of 1998 Page 3 of 24
Bhagaban Panda died leaving behind his 3 sons i.e.
Khetramohan, Krupasindhu & Dinabandhu. The 2nd Son of
Bhagaban i.e. Krupasindhu died issueless.
Khetramohan died leaving behind his wife Sadhabani
(plaintiff No.2) and 6 children i.e. plaintiff No.1, defendant
No.3, defendant No.4, plaintiff No.3, plaintiff No.4 and
defendant No.8.
The 2nd son of Kushei Panda i.e. Bhagabat died leaving
behind his wife Mandadori and one son and one daughter i.e.
Krushna & Suma. Krushna died issueless.
The 5th son of Kushei Panda i.e. Harihar died leaving
behind his wife Jadi and one son i.e. Bhaskar (defendant
No.2).
All the suit properties described in the Schedule of the
plaint are the joint and undivided properties of the plaintiff,
defendant Nos.1 to 5 and defendant No.8 and the said suit
properties have not been divided between them physically
through any metes and bounds partition.
Previously, one suit for partition was filed by the
predecessor of the plaintiffs i.e. Khetramohan Panda along
with defendant No.2 vide O.S. No.7/292/61 of 1950/1948-I in
S.A. No.296 of 1998 Page 4 of 24
respect of the suit properties along with their other jointproperties and that suit was decreed preliminarily for partition
in the Court of learned Addl. Sub-ordinate Judge, Balasore. In
that preliminary decree, the defendant No.2 (Bhaskar Panda,
who was the plaintiff No.2 in O.S. No.7/292/61 of
1950/1948-I) was entitled to get 1/8th share and others were
entitled to get their respective shares as per such preliminary
decree passed in O.S. No.7/292/61 of 1950/1948-I. After that
preliminary decree, one of the parties of that suit i.e. Suma
(daughter of Bhagabat) approached for final decree and
accordingly, in the final decree of O.S. No.7/292/61 of
1950/1948-I, the share of that Suma was carved out and her
share was separated making the preliminary decree final only
in respect of the share of Suma. After separation of share of
Suma through final decree in O.S. No.7/292/61 of
1950/1948-I, the rest other properties of that suit, which are
the subject matter of the present suit remained joint as it is
between Khetramohan (predecessor of the plaintiffs),
Dinabandhu (father of defendant No.5) and Bhaskar
(defendant No.2). During the joint ness of the properties of the
present suit, the defendant No.2 (Bhaskar Panda) sold more
S.A. No.296 of 1998 Page 5 of 24
than his share i.e. in respect of 1/4th share from the suitproperties in cultivable as well as in undivided dwelling house
to a stranger of their family i.e. defendant No.1 executing and
registering sale deed No.2884 dated 31.03.1959, although, he
(defendant No.2, Bhaskar Panda) had 1/8th share in the suit
properties as per the preliminary Decree passed in O.S.
No.7/292/61 of 1950/1948-I. For which, the above alienation
made by the defendant No.2 in favour of the defendant No.1
through sale deed No.2884 dated 31.03.1959 in excess of his
1/8th share is void and non-est under law. In spite of
execution of such sale deed, the defendant No.1 had not
entered into the possession of the joint and undivided suit
properties. But some years after execution of such sale deed,
the defendant No.1 forcibly occupied some of the cultivable
properties and tried to possess the joint and undivided qua
dwelling house of the plaintiffs described in Schedule “Ga” of
the plaint forcibly on the strength of such sale deed No.2884
dated 31.03.1959. For which, without getting any way, the
plaintiffs approached the Civil Court by filing the suit vide
O.S. No. 15 of 1991-I praying for partition of their legitimate
share from the suit properties and to pass the decree in their
S.A. No.296 of 1998 Page 6 of 24
favour under Section 4 of the Partition Act, 1893 in order torepurchase the share of the defendant No.1 in the “Ga”
schedule undivided qua dwelling house directing her
(defendant No.1) to execute and register the sale deed in their
favour in respect of the “Ga” schedule properties.
5. Having been noticed from the Trial Court in the suit vide
O.S. No.15 of 1991-I, out of all the defendants, only the
defendant Nos.1 and 5 contested the suit of the plaintiffs by
filing their separate written statements taking their stands
almost identically.
According to them (defendant Nos.1 and 5), the suit
properties have already been partitioned as per the decree
passed in the earlier suit vide O.S. No.7/292/61 of
1950/1948-I, for which, the question of partition of the suit
properties again does not arise. The present suit for partition
filed by the plaintiffs is not maintainable under law, because,
after the preliminary decree passed in the previous suit for
partition vide O.S. No.7/292/61 of 1950/1948-I, the suit
properties have already been divided amicably between them
(parties) through metes and bounds partition.
S.A. No.296 of 1998 Page 7 of 24
The additional pleas of the defendant No.1 were that, the
decree passed in the previous suit vide O.S. No.7/292/61 of
1950/1948-I was not binding upon the defendant No.2,
because the same was obtained by practicing fraud.
According to them (defendant Nos.1 and 5), in fact, the
defendant No.2 had 1/4th share in the suit properties but not
1/8th share, for which, she (defendant No.1) is a purchaser
from defendant No.2 in respect of his 1/4th share. She
(defendant No.1) has acquired title through adverse
possession over 1/4th share of the defendant No.2 in the suit
properties. That apart, after purchase, the suit properties
have been settled in favour of the defendant No.1 as per
Section 6 and 7 of Orissa Estate Abolition Act, for which,
Section 4 of the Partition Act has no applicability to the same.
Therefore, the suit of the plaintiffs is liable to be dismissed.
6. Basing upon the aforesaid pleadings and matters in
controversies between the parties, altogether 15 numbers of
issues were framed by the Trial Court in the suit vide O.S.
No.15 of 1991-I and the said issues are:
ISSUES
1. Have the plaintiffs cause of action to file this suit?
S.A. No.296 of 1998 Page 8 of 24
2. Is the suit maintainable in its present form?
3. Is the suit barred by law of limitation?
4. Is the suit bad for non-joinder of necessary parties?
5. Have the plaintiffs their right, title and interest in the suit
properties?
6. Are the “Ga” Schedule properties undivided dwelling
house?
7. Were the “Kha” and “Ga” schedule properties partitioned
by metes and bounds and are the parties in separate possession of
their shares of properties?
8. Is the purchase of “Ga” schedule properties by defendant
No.1 legal, valid and operative?
9. Are the suit properties liable to be partitioned?
10. Is the plaint genealogy correct?
11. To what reliefs?
12. Whether the defendant No.1 is a stranger to the family of
plaintiffs?
13. Whether the sale deed dated 31.03.1959 executed by
Bhaskar in favour of defendant No.1 is valid to the extent of his
share he has sold?
14. Whether the plaintiffs are entitled to repurchase the share
of Bhaskar in “Ga” Schedule which Bhaskar sold to defendant
No.1?
15. Whether the defendant No.1 perfected his right, title and
possession over the land which he has purchased in excess to the
share of Bhaskar by way of adverse possession?
7. In order to substantiate the aforesaid reliefs sought for
by the plaintiffs against the defendants, the plaintiffs
examined two witnesses from their side including the plaintiff
No.1 as P.W.1 and relied upon the documents vide Ext.1 to
16.
On the contrary, in order to nullify/defeat the suit of the
plaintiffs, the contesting defendant No.1 examined 3 witnesses
S.A. No.296 of 1998 Page 9 of 24
on her behalf as D.Ws.1 to 3 and relied upon the documents
vide Ext.A-1 to H-1.
The other contesting defendant i.e. defendant No.5
examined two witnesses on his behalf including him as D.W.1
and relied upon the document vide Ext.A-2 from his side.
8. After conclusion of hearing and on perusal of the
materials, documents and evidence available in the record, the
Trial Court answered all the issues in favour of the plaintiffs
and against the defendant Nos.1 and 5 and basing upon the
findings and observations made by the trial court in all the
issues in favour of the plaintiffs and against the defendant
Nos.1 and 5, the trial court decreed the suit of the plaintiffs
preliminarily for partition on contest against the defendant
Nos.1 and 5 and ex parte against rest other defendants as per
its Judgment and Decree dated 07.01.1993 and 21.01.1993
respectively determining the share of Bhaskar
Panda(defendant No.2) as 1/8th share, the share of
Dinabandhu (father of defendant No.5) as 1/4th and the share
of Khetramohan (predecessor of plaintiffs and defendant No.8)
as 3/8th on the basis of the earlier preliminary decree passed
in O.S. No.7/292/61 of 1950/1948-I clarifying that, their
S.A. No.296 of 1998 Page 10 of 24
respective successors in interest or purchasers shall be
entitled to the same as per law, but not more than that
entitling the plaintiffs to repurchase the 1/8th share of
Bhaskar Panda (defendant No.2) in Schedule “Ga” undivided
qua dwelling house from his purchaser i.e. from defendant
No.1 making it clear that, Bhaskar Panda (defendant No.2)
had 1/8th share in the suit schedule properties, but, he has
sold 1/4th share, for which, his sale is valid to the extent of
1/8th share in the suit properties.
9. On being dissatisfied with the aforesaid Judgment and
Decree passed by the trial court in O.S. No.15 of 1991-I in
favour of the plaintiffs and against the defendant Nos.1 and 5,
the defendant No.1 challenged the same by preferring the 1 st
Appeal vide T.A. No.14 of 1993 being the appellant against the
plaintiffs and defendant Nos.2 to 8 arraying them as
respondents.
After hearing from both the sides, the First Appellate
Court dismissed that 1st Appeal vide T.A. No.14 of 1993 of the
defendant No.1 concurring/accepting the findings and
observations made by the trial court as per its Judgment and
Decree dated 31.07.1998 and 12.08.1998 respectively.
S.A. No.296 of 1998 Page 11 of 24
10. On being aggrieved with the aforesaid Judgment and
Decree of the dismissal of the First Appellate Court vide T.A.
No.14 of 1993 of the defendant No.1, she (defendant No.1)
challenged the same by preferring this 2nd Appeal being the
appellant against the plaintiffs and other defendants arraying
them as respondents.
11. This 2nd Appeal was admitted on formulation of the
following substantial questions of law i.e.
I. Whether on the basis of the
materials on record, the court below was
correct in taking the view that 54 decimals of
land was validly purchased by the present
appellant formed part of a dwelling house
belonging to an undivided family and
whether the Court below committed any
error in holding that the plaintiffs are
entitled to re-purchase the same under
Section 4 of the Partition Act, 1893?
II. Whether the suit vide O.S. No.15 of
1991-I for partition was maintainable under
law in view of the Judgment and Decree
passed in the previous suit for partition vide
O.S. No.7/296/61 of 1950 (Ext.13)?
12. As per the Judgments and Decrees passed by the Trial
Court and First Appellate Court on the basis of the pleadings
and evidence of the parties, when the aforesaid formulated
substantial questions of law are interlinked having ample
nexus with each other, then, all the formulated substantial
S.A. No.296 of 1998 Page 12 of 24
questions of law are taken up together analogously for their
discussions hereunder:
So far as the maintainability of the present suit for
partition between the parties in respect of the suit properties,
when the suit properties along with other properties were
partitioned in the previous suit vide O.S. No.7/296/61 of
1950-1948-I (Ext.13) is concerned,
it is the admitted case of the parties that, after the
preliminary decree passed in the previous suit for partition
vide O.S. No.7/296/61 of 1950-1948-I (Ext.13) in respect of
the suit properties along with other properties, no final decree
has been passed in that suit in respect of the properties, those
are the subject matter of the present suit. After preliminary
decree passed in O.S. No.7/296/61 of 1950-1948-I (Ext.13) in
respect of the properties of this suit along with others, the suit
properties of the present suit have been recorded jointly in the
name of the predecessor of the plaintiffs i.e. Khetramohan
Panda, father of the defendant No.5 i.e. Dinabandhu Panda
and the defendant No.2 Bhaskar Panda in its next settlement,
for which, the plaintiffs filed the present suit praying for
partition of their legitimate share from the suit properties.
S.A. No.296 of 1998 Page 13 of 24
It is the settled propositions of law that, a preliminary
decree in a suit for partition only defines the shares of the
parties, for which, the preliminary decree is not executable
under law, but, the final decree is executable. Therefore,
subsequent suit for partition for the self-same properties is
maintainable, if, after preliminary decree, there is no division
of the suit properties practically in the field between the
parties according to their defined shares in the preliminary
decree either mutually or through final decree. So, a co-sharer
has got a right to seek fresh partition, if, for some reason, the
previous decree for partition becomes unenforceable, because,
there has not been actually breaking up of the title and
possession due to lack of physical division of properties
through metes and bounds partition.
On this aspect the propositions of law has already been
clarified in the ratio of the following decisions:
I. In a case between A. Thakurdas and Another Vs. A. Venilal and
Others reported in AIR 1977 (Karnataka) 60, preliminary decree
is not executable but final decree is executable.
II. In a case between Santan Narain Tewari Vs. Saran Narain
Tewari & Others reported in AIR 1959 (Patna) 331, a co-sharer
has got a right to seek fresh partition, if for some reason theS.A. No.296 of 1998 Page 14 of 24
previous decree for partition becomes unenforceable, so that, there
has not been actually breaking up of the title and possession.
III. In a case between Bashiruddin Khwaja Mohiuddin Vs. Binraj
Murlidhar Shop at Malkapur & Others reported in AIR 1987
(Bombay) 235, subsequent suit for partition is maintainable, if final
decree in respect of earlier suit has not been made.
13. When, undisputedly no final decree has been
drawn/passed in the earlier suit vide O.S. No.7/296/61 of
1950-1948-I (Ext.13) after its preliminary decree and when
there is no material in the record to show about the division of
the suit properties between the parties as per the defined
shares in the preliminary decree of O.S. No.7/296/61 of
1950/1948-I and when in its next settlement, the suit
properties have been recorded jointly in the name of
Khetramohan, Dinabandhu and Bhaskar i.e. predecessor of
the plaintiffs, father of the defendant No.5 and defendant
No.2, then, at this juncture, by applying the principles of the
law enunciated in the ratio of the aforesaid decisions of the
Hon’ble Courts, it is held that, the present suit for partition
filed by the plaintiffs in respect of the suit properties against
the defendants including the defendant Nos.1 and 5 is
maintainable under law, in spite of passing of preliminary
decree in respect of the suit properties and others in the
S.A. No.296 of 1998 Page 15 of 24
previous suit vide O.S. No.7/296/61 of 1950/1948-I (Ext.13).
For which, the findings and observations made by the trial
court as well as 1st appellate Court holding that, the suit of
the plaintiffs for partition is maintainable under law and the
same cannot be held as not maintainable under law cannot be
held as erroneous.
14. Undisputedly, the defendant No.1 is a purchaser of the
“Ga” schedule suit properties along with other suit properties
from the defendant No.2. and the status of the said “Ga”
schedule suit properties are homestead and the present
R.o.Rs thereof stands jointly in the names of Khetramohan,
Dinabandhu and defendant No.1. The name of defendant No.1
has been inserted in the R.o.Rs of “Ga” schedule properties as
a purchaser of the share of defendant No.2 (Bhaskar Panda)
jointly with Khetramohan Panda and Dinabandhu Panda. So,
on the basis of the Kisam/Status of “Ga” schedule properties
in the R.o.R and its joint recordings as stated above, it is held
that, the said “Ga” schedule suit properties are the undivided
qua dwelling house of the plaintiffs because, the plaintiffs and
defendant No.8 are the successors of Khetramohan Panda and
the defendant No.5 is the successor of Dinabandhu Panda.
S.A. No.296 of 1998 Page 16 of 24
It is the undisputed case of the parties that, the
defendant No.1 is not the family member of the plaintiffs and
defendant Nos.2 to 5 and 8, for which, it is safely conclude
that, defendant No.1 is a stranger to the family of the
plaintiffs, defendant Nos.2 to 5 and 8.
The defendant No.2 has sold 1/4th share in the suit
properties to the stranger-Purchaser (defendant No.1) through
registered sale deed No.2884 dated 31.03.1959 (Ext.A-1),
though, his defined share in the suit properties as per the
preliminary decree passed in O.S. No.7/296/61 of
1950(Ext.13) is 1/8th.
In that suit vide O.S. No.7/296/61 of 1950-1948-I, the
defendant No.2 (vendor of the defendant No.1) was the
plaintiff No.2 and the predecessor of the plaintiffs and
defendant No.8 i.e. Khetramohan Panda was the plaintiff No.1.
The definement of share of the defendant No.2 made in the
Judgment and Decree of O.S. No.7/296/61 of 1950(Ext.13)
regarding his 1/8th share in the suit properties has not at all
been varied/altered or set aside till yet. Therefore, on the
basis of the unaltered/unchallenged preliminary Decree
passed in O.S. No.7/296/61 of 1950(Ext.13), it is held that,
S.A. No.296 of 1998 Page 17 of 24
the share of the defendant No.2 in the suit properties is 1/8th
not 1/4th, but whereas, the defendant No.2 has alienated
1/4th share from the suit properties in favour of the stranger
defendant No.1 through registered sale deed No.2884 dated
31.03.1959 vide Ext.A-1, though, the defendant No.2 had not
alienable right in respect of 1/4th share, because, he had
alienable right only in respect of 1/8th share. Therefore, the
findings and observations made by the trial court and 1st
Appellate Court that, the alienation made by the defendant
No.2 in favour of the defendant No.1 in excess of his 1/8th
share in the suit properties is void cannot be held as
erroneous.
On this aspect, the propositions of law has already been
clarified by the Hon’ble Courts and Apex Court in the ratio of
the following decisions:
I. In a case between Gorakh Nath Dube Vs. Hari Narain Singh &
Others reported in AIR 1973 (SC) 2451, “an alienation made in
excess of power to transfer would be to the extent of the excess of
power, invalid.”
II. In a case between Ganapath Sahu and another Vs. Smt. Bulli
Sahu & Others reported in AIR 1974 Orissa 192, “transfer of
property more than the transferor’s interest in lands jointly held
with others is not invalid in toto, but it would be held valid and
operative to the extent of the transferors interest therein.S.A. No.296 of 1998 Page 18 of 24
15. The defendant No.1 has claimed his exclusive ownership
in respect of 1/4th share over the “Ga” Schedule joint and
undivided dwelling house of the plaintiffs, defendant Nos.2 to
5 and 8 on the basis of settlement of the “Ga” schedule
properties in her name under Sections 6,7 & 8 of O.E.A. Act in
O.E.A. Case No.1707/1964-1965 by the OEA Collector as per
Ext.E/1 and F/1.
The said contention of the defendant No.1 about his
exclusive title over “Ga” schedule properties on the basis of
settlement made in his name in O.E.A. Case No.1707/1964-
65 by the O.E.A. Collector cannot be sustainable under law,
because, the Order passed in O.E.A. Case No.1707/1964-65
in favour of the defendant No.1 has been reversed by its
subsequent O.E.A. Case No.168 of 1979 by the O.E.A.
Collector as per its Order dated 25.08.1983 and after
reversing the earlier Order (which was passed in favour of the
defendant No.1 in O.E.A. Case No. 1707/1964-65), the said
suit properties were settled jointly in favour of all the co-
sharers thereof i.e. Khetramohan, Dinbandhu and defendant
No.1.
S.A. No.296 of 1998 Page 19 of 24
As, the defendant No.1 is the purchaser of the share of
Bhaskar Panda (defendant No.2) as per Ext.A-1 and the
R.o.Rs of the suit properties prior to the fixation of rent in
O.E.A. Case were prepared jointly in the names of
Khetramohan, Dinabandhu and Bhaskar, then, at this
juncture, the Order passed in O.E.A. Case No.168 of 1979
under Sections6,7 & 8 of the O.E.A. Act fixing the rents of the
suit properties jointly in the names of Khetamohan,
Dinabandhu and defendant No.1 cannot be held as erroneous.
That apart, that final order passed in O.E.A. Case No.168 of
1979 has already been reached in its finality. Because, the
said order passed in O.E.A. Case No.168 of 1979 on dated
25.08.1983 has not been varied, altered or set aside as yet.
It is the settled propositions of law that, when two orders
or two Judgments passed in respect of the same properties
between the parties, are inconsistent with each other, in that
case, subsequent order or Judgment shall prevail.
On this aspect, the propositions of law has already been
clarified by the Hon’ble Courts and Apex Court in the ratio of
the following decisions:
S.A. No.296 of 1998 Page 20 of 24
I. In the cases between Gram Panchayat Bahadurpur Vs. Social
Education and Panchayat Officer & Others reported in 2011 (I)
Civ.L.T. 397 (P & H), M. Kunhinama Kurup & Others Vs. Mayyarat
Krishnan Kurup reported in AIR 1987 (Ker) 13 and Mathura Prasad
Rajgaria Vs. State of West Bengal reported in AIR 1973 (Cal) 288 it
has been held by the Hon’ble Courts that, When two Judgments being
inconsistent with each other will come on same property and between
same party, which one will prevail.
If in respect of same property and between same parties, two
decisions have come and they are inconsistent with each other, later
decision shall prevail.
II. In a case between Joydeep Mukherjee Vs. State of West Bengal &
Others reported in (2011) 2 SCC 706, “when Judgments in question
attained in its finality, they cannot be permitted to be reagitated over
and over again”.
16. As per the discussions and observations made above,
when it is held on being fully agreed with the findings and
observations made by the Trial Court and 1st Appellate Court
that, the suit properties are the joint and undivided properties
of the parties and the properties described under Schedule
“Ga” are the joint undivided qua dwelling house of the
plaintiffs, defendant No.2 to 5 and defendant No.8. and the
defendant No.1 is a stranger purchaser from defendant No.2
only in respect of the 1/8th share of the defendant No.2, then,
at this juncture, a question arises, whether at this stage of the
suit, the prayer of the plaintiffs under Section 4 of the
S.A. No.296 of 1998 Page 21 of 24
Partition Act, 1893 to repurchase “Ga” schedule suitproperties from the defendant No.1 is maintainable under law,
when the stranger purchaser i.e. defendant No.1 has not filed
the suit.
On this aspect the propositions of law has already been
clarified by the Apex Court in the ratio of the following
decisions.
I. In a case between Bidyadhar Behera & Others Vs. Nilakantha Rout
& Another reported in 2018 (I) CLR 864 at Para Nos.10 and 11
that, “a co-sharer being a plaintiff cannot maintain a suit claiming
the right of pre-emption under Section 4 of the Partition Act, 1893,
but he can exercise such right in a suit for partition and separate
possession brought by stranger purchaser/transferee. The divergent
views of different High Courts with regard to the scope and ambit
of Section 4 of the Partition Act, 1893 has been settled by the Apex
Court in the decision reported in AIR 1997 (SC) 471:Ghantesher
Ghosh Vs. Madan Mohan Ghosh & Others“.
II. In a case between Ghantesher Ghosh Vs. Madan Mohan Ghosh &
Others reported in AIR 1997 SC 471, “a co-sharer cannot maintain
a suit claiming the right of pre-emption but, he can exercise the
right in a suit for partition and separate possession filed by the
stranger transferee”.
17. When, the stranger purchaser (defendant No.1) has not
filed the suit for partition, then, in view of the clarification
made by the Apex Court in the ratio of the decision reported in
AIR 1997 SC 471:Ghantesher Ghosh Vs. Madan Mohan
S.A. No.296 of 1998 Page 22 of 24
Ghosh & Others, the relief under Section 4 of the Partition
Act sought for by the plaintiffs is not entertainable under law
at present, but, they (plaintiffs) can seek such remedy in the
subsequent stage of this suit i.e. after preliminary decree as
per law, for which, there is justification under law for making
little interference with the impugned Judgment and Decree
passed by the Trial Court and First Appellate Court through
this 2nd Appeal filed by the defendant No.1.
18. Therefore, the 2nd Appeal filed by the appellant
(defendant No.1) is allowed in part on contest but without
cost.
19. The Judgment and Decree concerning the preliminary
decree passed by the Trial Court in O.S. No.15 of 1991-I and
confirmation of the same by the 1st Appellate Court in respect
of the determination of shares of the parties in the suit
properties are confirmed, but whereas, the passing of the
Judgment and Decree in the suit vide O.S. No.15 of 1991-I
and confirmation of the same by the 1st Appellate Court under
Section 4 of the Partition Act, 1893 entitling the plaintiffs to
repurchase the share of the defendant No.2 in “Ga” Schedule
suit properties from the defendant No.1 is set aside, giving
S.A. No.296 of 1998 Page 23 of 24
liberty to the plaintiffs and defendant Nos.2 to 5 and 8 to seek
such relief under Section 4 of the Partition Act, 1893 against
the defendant No.1 in the subsequent stages of the suit vide
O.S. No.15 of 1991-I as per law after its preliminary decree as
per the guidelines of the Apex Court in a case between
Ghantesher Ghosh Vs. Madan Mohan Ghosh & Others
referred to supra in Para No.16 of this Judgment .
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 17 .01. 2025// Rati Ranjan Nayak
Sr. Stenographer
Signature Not Verified
Digitally Signed
Signed by: RATI RANJAN NAYAK
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack, India.
Date: 20-Jan-2025 17:35:49
S.A. No.296 of 1998 Page 24 of 24
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