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2020 DIGILAW 442 (JHR)

Hardeo Nayak @ Hardeb Naik v. Kalipada Naik

2020-03-04

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT 1. Heard Mr. S.K. Sharma, the learned counsel for the petitioner and Mr. Mokhtar Ahmed, the learned counsel for the respondents. 2. The petitioner has preferred this writ petition for quashing the order dated 30.11.2015 passed by Civil Judge, Senior Division-II, Saraikella Kharsawan, in Title Partition Suit No.2 of 2009. 3. Mr. Sharma, the learned counsel submits that by way of amendment the court below has incorporated the lands of Khata Nos.2, 3 and 5 however there is no unity of title and possession and same is already partitioned land and recorded in the name of Gokul Naik, S/o Goverdhan Naik, Govind Naik, S/o Sudarsan Naik and Gautam Naik, S/o Sudarsan Naik during the revisional survey. 4. The learned counsel for the respondents submits that there is no illegality in the impugned order and only the Court has said that the dispute will be decided in view of the amendment at the time of final hearing of the suit. 5. The Court has perused the impugned order wherein the learned Civil Judge, Senior Division, Saraikella Kharsawan has considered this aspect of the matter that Khata No.5 of Mouza Shivpur is recorded in the name of Goutam Nayak. The land of Khata no.2 of Mouza Shivpur recorded in the name of Gokul Nayal and Land of Khata No.3 recorded in the name of Govind Nayak. Gokul Nayak is defendant no.9 and heirs of Govind Nayak have also been implicated in the suit. The plea of the plaintiff in paragraph 4 of the plaint is that Gautam Nayak is recorded raiyat of Khata no.5 died after revisional survey leaving behind three daughters Jarmani, Surmani and Dahi defendant nos.10 to 12. Thus, all the lands which the plaintiff wants to add in this partition suit is recorded in the name of parties to the suit or their ancestor. Seeing the general rule of the partition suit all the properties should be included in the partition suit and in that view of the matter the impugned order has been passed under Order VI Rule 17 of the CPC by the court below subject to payment of cost of Rs.1,000/- to the defendant. 6. It transpires from the impugned order that the Court has considered the bona fide, honest and necessary amendments and that is why the application under Order VI Rule 17 of the CPC has been allowed. 6. It transpires from the impugned order that the Court has considered the bona fide, honest and necessary amendments and that is why the application under Order VI Rule 17 of the CPC has been allowed. This Court has not find any illegality in the impugned order and accordingly the writ petition [W.P.(C) No.464 of 2016] is dismissed, however, a liberty is kept reserved for the petitioners who can raise all the points before the court below at the time of final hearing of the suit.