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2019 DIGILAW 289 (ORI)

Sitaram Behera v. Udayanath @ Hadi Behera

2019-04-08

A.K.RATH

body2019
JUDGMENT : Dr. A.K. Rath, J. This petition challenges the order dated 26.10.2018 passed by learned Senior Civil Judge, Nayagarh in C.S. No.101 of 2004 (F.D.), whereby and whereunder learned trial judge has rejected the application of the plaintiff-petitioner to withdraw the final decree proceeding and allowed the application of the defendant no.4 for transposing him as plaintiff. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that plaintiff-petitioner instituted C.S. No.101 of 2004 for partition. The suit was decreed preliminarily. Thereafter, he levied final decree proceeding. While the matter stood thus, he filed a petition to withdraw the final decree proceeding on the ground that OLR Case No.446 of 2012 under Sec.19(c) of Orissa Land Reforms Act, 1960 ("OLR Act") was filed before the Revenue Officer-cum-Tahasildar, Nayagarh for partition of schedule A land between the parties. The Revenue Officer allowed the petition and declared the share of the parties. The Revenue Officer is empowered under the OLR Act to effect partition. In view of the order passed by the Revenue Officer, there is no necessity to proceed with the final decree. The defendant no.4 filed an application for transposition. Learned trial judge rejected the application of the plaintiff and allowed the application of the defendant no.4 for transposition. 3. Heard Mrs. Archana Mohanty, learned Advocate for the petitioner. 4. Mrs. Mohanty, learned Advocate for the petitioner submits that during pendency of the final decree proceeding, one of the parties instituted OLR Case No.446 of 2012 before the Revenue Officer-cum-Tahasildar, Nayagarh for partition of schedule A land. The Revenue Officer deputed a survey knowing commissioner. After observing proper procedure, it carved out the share of the parties. The Revenue Officer is competent to effect partition under Sec.19(c) of OLR Act. Thus final decree proceeding cannot continue. 5. The apex Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, (2009) 9 SCC 689 held: "Under the provisions of CPC, even as they stand at present, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same). The apex Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, (2009) 9 SCC 689 held: "Under the provisions of CPC, even as they stand at present, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same). Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution." 6. In a partition suit, the plaintiff is the defendant and vice-versa. As held by the apex Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna initiation of final decree proceedings does not depend upon the application. The Code does not contemplate filing an application for final decree. When a preliminary decree is passed in a partition suit, the proceedings should be continued till a final decree is passed. It is the duty and function of the court. In view of the same, learned trial judge is quite justified in transposing defendant no.4 as plaintiff. The petitioner shall be transposed as defendant no.4. The order passed by the Revenue Officer in OLR Case No.446 of 2012 has not brought to the notice of the court. 7. In view of the forgoing discussions, the petition is disposed of with an observation that if the petitioner, who has been transposed as defendant no.4, files an appropriate application to drop the final decree along with the certified copy of the order passed by the Revenue Officer in OLR Case No.446/2012, learned trial judge shall do well to decide the maintainability of the final decree.