Allowed

Sarifun Bibi v. Sk.Golam [email protected]

Orissa HC3 Apr 2023CMP/299/2017

Case brief

AI extract

What is this about?

The High Court allowed a compromise petition regarding ancestral property, setting aside an impugned order of the Civil Court that rejected it. The Court found the lower court misappreciated facts and held the case was better suited for revision, yet disposed of the current petition on merit, remitting the matter for fresh consideration and vacating an interim order.

What did the court decide?

The impugned order under Annexure-3 rejecting the compromise application is set aside. The matter is remitted to the trial court for fresh consideration. The interim order dated 10th April, 2017 is va

Sarifun Bibi Vs Sk.Golam Mohiuddin@Sk.Mohiuddin — Partition | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CMP No. 299 OF 2017

¶3

Sarifun Bibi

¶4

…. Petitioner

¶5

Mr. Gyanaloka Mohanty, Advocate

¶6

-versus-

¶7

…. Sk. Golam Mohiuddin @ Sk. Opp. Parties Mohiuddin and another

¶8

None

¶9

CORAM:

¶10

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

03.04.2023

This matter is taken up through hybrid mode.

¶16

Order dated 19^th December, 2016 (Annexure-3) passed by learned Civil Judge (Junior Division), Balasore in C.S. No.1854 of 2016-I is under challenge in this CMP, whereby an application under Order XXIII Rule 3 C.P.C. filed by the parties to the suit, has been rejected.

¶17

Mr. Mohanty, learned counsel for the Petitioner submits that the property in question stood recorded in the name of common ancestor, namely, late Sk. Asraf in the R.O.R. published in the year, 1987. He died leaving behind Sk. Gulam Mahiuddin (son)-Defendant No.1 and Taimun Bibi (daughter). PlaintiffPetitioner is the daughter-in-law of said Taimun Bibi (wife of Sk. Meherajuddin, S/o. late Taimun Bibi). Sk. Gulam Mahiuddin and Sk. Meherajuddin had made an oral gift in favour of the PlaintiffPetitioner. On the basis of the said oral gift, the Petitioner filed C.S. No.1854 of 2016 for declaration of right, title, interest and other consequential relief. During pendency of the civil suit, the parties to the suit, namely, the Petitioner and Opposite Parties

¶18

Page 1 of 3

¶19

// 2 //

¶20

filed an application under Order XXIII Rule 3 C.P.C. for disposal of the suit on compromise. Although there is no objection on behalf of any of the parties to the suit to the said compromise, learned trial Court holding that neither the Plaintiff nor the Defendants filed any document in which it can be presumed that the suit land was exclusively recorded in the name of said Sk. Gulam Mahiuddin-Defendant No.1, rejected the application.

¶21

It is his submission that it is the case of none of the parties that Sk. Gulam Mahiuddin is the exclusive owner of the said property. On the other hand, the Plaintiff-Petitioner has come to the Court with a definite case that the suit land was exclusively recorded in the name of Sk. Asraf, the common ancestor. In view of the above, he prays for setting aside the impugned order under Annexure-3 and to remit the matter back to learned trial Court for fresh consideration of the petition under Order XXIII Rule 3

¶22

C.P.C.

¶23

Although, the Opposite Parties entered appearance through learned counsel, but none appears on their behalf at the time of call.

¶24

Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that the proper remedy for the Petitioner was to file a revision under Section 115 C.P.C.. Since this Court entertaining the CMP issued notice in the matter, it is felt necessary to dispose of the CMP on merit.

¶25

On perusal of the impugned order under Annexure-3, it appears that on a wrong appreciation of the fact, learned trial Court appears to have rejected the petition for compromise. Although the Plaintiff-Petitioner has come to the Court with a

¶26

Page 2 of 3

¶27

// 3 //

¶28

definite case that the property is the ancestral property and is exclusively recorded in the name of Sk. Asraf, but learned trial Court misconstruing the fact, has recorded a finding that there is no material to show that Sk. Gulam Mahiuddin-Defendant No.1 is the exclusive owner of the suit property. In view of the above, the impugned order under Annexure-3 is set aside and the matter is remitted back to learned trial Court for fresh consideration of the petition under Order XXIII Rule 3 C.P.C. in accordance with law giving opportunity of hearing to the parties concerned.

¶29

The CMP is accordingly disposed of.

¶30

Interim order dated 10^th April, 2017 passed in Misc. Case No.335 of 2017 stands vacated.

¶31

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

¶32

¶33

(K.R. Mohapatra)
Judge

¶34

Page 3 of 3

Sarifun Bibi v. Sk.Golam [email protected]

Case brief

What is this about?

What did the court decide?

Sarifun Bibi v. Sk.Golam [email protected]

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Taramani Biswal Vs Narahari Sahudead

Samsida Khatoon Vs Abdul Kalim Khan

Arnapurna Sethi Vs Khagendra Sethi

A.Kumari Vs a.Dhananjaya

Sandhyarani Bidyadha Vs Prasanta Bidyadhar

Bipin Bihari Swain Vs Puspanjali Swain