Pratap Beura And Another vs Rajkisore Beura And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 6th April, 2024 (Annexure-1) passed by learned Civil Judge (Senior Division), Kujang in C.S. No.305 of 2020 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order XVIII Rule 1 CPC to direct the Defendants to begin the suit, has been rejected.

Mr. Bose, learned counsel for the Petitioners submits that the suit has been filed for partition, declaration that RSD Nos.1102 and 1103 dated 10th June, 1992 executed by Defendant Nos.1 to 3 in favour of Defendant Nos.4 to 6 is beyond their entitlement and thus, void. A prayer for permanent injunction has also been sought for. The Plaintiffs in the plaint have categorically stated that there has been no partition by metes and bounds between the parties. The Defendant Nos.1 to 3 are entitled to eight anna share, i.e., Ac.0.01.500 Sqlinks in the suit property. But, they have alienated property to Defendant Nos.4 to 6 by virtue of the sale deeds in question, which is beyond their entitlement. Hence, the suit has been filed for the aforesaid relief. The Defendant Nos.1 to 3 filed their written statement admitting that there has been a partition by metes and bounds and thus no further claim for partition by the Plaintiffs is maintainable. Hence, the Plaintiffs filed an application under Order XVIII Rule 1 CPC to direct Defendants Nos.1 to 3 to begin the suit. Learned trial Court on a misconception that the Defendants have not admitted that there has been a partition by metes and bounds, refused the prayer. Hence, this CMP has been filed.

Mr. Dash, learned counsel for Opposite Party No.5 submits that although the Defendant Nos.1 to 3 have admitted that there has been a partition by metes and bounds in respect of the suit property, but other pleadings made in the plaint have been denied. As such, the provision under Order XVIII Rule 1 CPC is not applicable to the instant case. He, therefore, submits that learned trial Court has committed no error in dismissing the petition.

Taking note of the submissions made by learned counsel for the parties and on perusal of the record, more particularly, the plaint as well as the written statement filed, it appears that the Defendant Nos.1 to 3 have categorically stated in their written statement that there has been an amicable partition by metes and bounds between the parties. Thus, they contended that the Plaintiffs are not entitled to the relief of partition. Thus, Defendant Nos.1 to 3 should have been directed to begin the suit, as partition would be the main issue for deciding the other issues in the suit.

This Court in the cases of Purasattam @ Purosattam Gaigouria –v- Chatru @ Charukhuja Gaigouria, reported in 1992 (I) OLR 72 and Manorama Chotray –v- Prafulla Kumar Chotray, reported in 2014 (I) OLR 575 held that when a previous partition has been pleaded by the Defendants in a suit for partition, they should begin the suit in terms of Order XVIII Rule 1 CPC.

In view of the above, the impugned order under Annexure-1 is not sustainable and is accordingly set aside. The matter is remitted to learned Civil Judge (Senior Division), Kujang for fresh adjudication of petition under Order XVIII Rule 1 CPC upon hearing learned counsel for the parties and scrutinizing the pleadings of the respective parties available on record.

With the aforesaid observation and direction, the CMP is disposed of.

Urgent certified copy of this order be granted on proper application.

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