Disposed

Rama Chandra Bagarti v. Hemabati Banchhor

Orissa HC12 Sept 2023CMP/268/2023

Case brief

AI extract

What is this about?

In a CPC matter concerning property rights, the High Court of Orissa disposed of the CMP without interfering with the lower court order. The Court directed the trial court to frame and adjudicate issues regarding the maintainability of the counter claim and the identity of the suit property upon receiving evidence.

What did the court decide?

The CMP is disposed of; the trial court is directed to frame and adjudicate issues regarding the maintainability of the suit and identity of the suit property upon receiving evidence. Interim order da

Rama Chandra Bagarti Vs Hemabati Banchhor — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.268 OF 2023 Rama Chandra Bagarti …. Petitioner

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Mr. Kabir Kumar Jena, Advocate

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-versus-

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Hemabati Banchhor and others …. Opp. Parties

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Mr. Amit Prasad Bose, Advocate

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

12.09.2023

This matter is taken up through hybrid mode.

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Order dated 17^th August, 2022 (Annexure-5) passed by learned Additional District and Sessions Judge, Bargarh in CRP No.7/4 of 2012-17 confirming the order dated 2^nd September, 2012 (Annexure-3) passed by learned Civil Judge (Senior Division), Bargarh in CS No.26 of 2008 is under challenge in this CMP, whereby counter claim filed by the Opposite Party Nos. 1a to 1d, has been accepted.

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Mr. Jena, learned counsel for the Petitioner submits that CS No.26 of 2008 has been filed for declaration of right, title and interest of the Plaintiff over the suit properties and for other relief. The suit schedule property is as follows:

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“SCHEDULE OF LAND

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Land comprising of an area of Ac 0.36 dec, vide Chaka Khata No.76 out of Chaka Plot No.3, situated at mouze-

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Baramchari, Ward No.16, Bargarh corresponds to M.S. Khata No.26, out of Plot No.10 and being bounded by the land of Bimbadhar Bagarti towards North- Own land towards South- as shown in red colour marked in a map annexed with this plaint and being part of affidavit.”

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Page 1 of 3

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// 2 //

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However, written statement along with the counter claim has been filed by Defendant –Opposite Party Nos. 1a to 1d for declaration of RSD No.1731 dated 11^th August, 2006 executed by Defendant No.1 in favour of the Defendant No.2 to be null and void and for other consequential relief. The schedule of property in the counter claim is as under:

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“Schedule ‘B’

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Land situated in Mouse Brahmachari, P.S./Dist. Bargarh appertaining to Final Chaka Khata No.76 (Seventy six, Plot No.18 (eighteen) area 0.64 (sixty four decimals), which corresponds to a portion of M.s. Plot No.10 (Ten) of M.S.. Khata No. 26 (twenty six).”

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It is his submission that the suit property as in the counter claim is different than that of the suit schedule property. Thus a counter claim by the Opposite Party Nos. 1a to 1d is not maintainable. The Defendants Opposite Parties, if so wish, may file a separate suit claiming the relief as prayed for in the counter claim.

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Mr. Bose, learned counsel for the Opposite Party Nos. 1a to 1d drew attention of this Court to the discussion made by learned Revisional Court with regard to the identity of the property. Analyzing the materials on record and corresponding major Settlement description of the suit property, it is held that the property in the suit as well as counter claim are one and the same.

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Mr. Jena, learned counsel for the Petitioner however submits that the discussion made by learned Additional District Judge, Bargarh is not correct.

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Page 2 of 3

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// 3 //

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Since the identity of the suit property is a matter of appreciation of evidence, the same can be adjudicated effectively at the final hearing of the suit as well as counter claim.

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In view of the above, this Court without interfering with the order under Annexure-3 and 5, disposes of the CMP with a direction that if sought for, issue with regard to the maintainability of the suit and identity of the suit property shall be framed and adjudicated by learned trial Court by receiving evidence.

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While adjudicating the aforesaid issue, learned trial court shall not be influenced by any observation made by the Revisional Court vide order under Annexure-5.

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The CMP is disposed of accordingly.

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Interim order dated 20^th April, 2023 stands vacated.

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

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Rojalin

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(K.R. Mohapatra) Judge

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Sep-2023 14:11:28

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Page 3 of 3

Rama Chandra Bagarti v. Hemabati Banchhor

Case brief

What is this about?

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Rama Chandra Bagarti v. Hemabati Banchhor

Case brief

What is this about?

What did the court decide?

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