Orissa High Court
Biswanath Jagadev And Another vs Sri Raghunath Jagadev And Others ..... ... on 10 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.349 of 2026
Biswanath Jagadev and another ..... Petitioners
Represented by Adv. -
Mr. Sidhartha Misra
-versus-
Sri Raghunath Jagadev and others ..... Opposite Parties
Represented by Adv. -
Mr. D.K. Sahu, AGA as
Amicus Curiea
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
10.03.2026 Order No.
02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. Heard Mr. Sidhartha Misra, learned counsel for the Petitioners and Mr. D.K. Sahu, learned Additional Government Advocate as Amicus Curiae.
3. At the outset, it is clear that the issue involved in the present CMP application is with regard to determination of Stamp Duty in a Final Decree proceeding bearing No.562 of 2011, arising out of C.S. No.77/562 of 2013/2011 pending in the court of the learned Additional Civil Judge (Senior Division), Puri. Such issue of payment of Stamp Duty is basically an issue between the Decree Holder and the Court, this Court requested Mr. D.K. Sahoo, learned Additional Government Advocate to assist this Court as an Page 1 of 5. Amicus.
4. By filing the present CMP application under Article 227 of the Constitution of India, the Plaintiffs-Decree Holders in C.S. No.77/562 of 2013/2011 have approached this Court challenging the order dated 25.03.2025 passed by the learned Additional Civil Judge (Senior Division), Puri.
5. By virtue of the impugned order dated 25.03.2025, the learned executing court has directed the parties to furnish required stamp papers for passing of the final decree as per the report submitted by the Survey Knowing Commissioner, who has valued the suit land as per the present market value.
6. Learned counsel for the Petitioners (Plaintiffs-Decree Holders), at the outset, contended that the report submitted by the Survey Knowing Commissioner is not final and that the court below should not have acted upon the valuation furnished by the Survey Knowing Commissioner basing on some imaginary market value. He further contended that the Petitioners could not file any objection to the report of the Survey Knowing Commissioner. As such, the learned trial court has accepted the report of the Survey Knowing Commissioner and assessed the value for the property as per the report of the Survey Knowing Commissioner. Learned counsel for the Petitioner further submitted that the property should have been valued as per the valuation disclosed in the plaint. In the aforesaid ground, learned counsel for the Petitioner prayed for setting aside the order dated 25.03.2025 at Annexure-5 to the CMP application.
Page 2 of 5.7. Mr. D.K. Sahoo, learned Additional Government Advocate, on the other hand, contended that the final decree proceeding arises out of a suit for partition. He further contended that so far the suit for partition is concerned, the Plaintiffs are required to pay a fixed Court Fee. With regard to Stamp Duty that is to be paid in the final decree proceeding. Mr. D.K. Sahoo, submitted that it is upto the trial court to determine the valuation of the suit scheduled property and ask the parties to pay the Stamp Duty. In the present case, a Survey Knowing Commissioner is deputed to carve out the properties of the respective co-sharers. In his report, the Survey Knowing Commissioner has fixed the valuation of the property by taking into consideration the present market value. Accordingly, the suit properties have been valued at Rs.76,65,500/-, as per the present market value prevailing the market. He further contended that the bare reading of the impugned order reveals that no objection was filed by the Decree Holders to the report of the Survey Knowing Commissioner. Thus, Mr. D.K. Sahoo, learned Additional Government Advocate contended before this Court that the learned trial court has not committed any illegality in accepting the valuation provided in the report of the Survey Knowing Commissioner. On such ground, Mr. D.K. Sahoo, contended that the learned trial court has not committed any illegality in accepting the valuation indicated in the report of the Survey Knowing Commissioner.
8. On a careful consideration of the submissions made by the learned counsel for the Petitioner as well as Mr. D.K. Sahoo, learned Additional Government Advocate, this Court observes that Page 3 of 5. the Petitioner being aggrieved by the order passed by the learned trial court directing him to pay Stamp Duty on the basis of the valuation as furnished by the Survey Knowing Commissioner has approached this Court by filing the present CMP application. So far the payment of Stamp Duty is concerned, the same is to be assessed on the basis of the valuation of the suit scheduled properties. Such assessment falls within the domain of the learned executing court and while determining the valuation of the suit schedule property, it is open to the learned trial court to carry out an inquiry to ascertain the value of the suit scheduled properties. In the instant case, the learned executing court has relied upon the report of the Survey Knowing Commissioner to determine the value of the suit schedule properties held by the co-sharers. Thus, prima facie, this Court is of the view that the learned trial court has not committed any illegality in resorting to the Survey Knowing Commissioner report for the purpose of fixation of valuation. However, in the present case, the report of the Survey Knowing Commissioner cannot be accepted to be final as no objection has been filed by the Petitioners to such report of the Survey Knowing Commissioner.
9. The contention of the learned counsel for the Petitioner is that the report of the Survey Knowing Commissioner was with regard to carving out respective shares of the co-sharers and it was not for the purpose of deciding the valuation of the suit land. As such, the Petitioners could not file their objection to the report of the Survey Knowing Commissioner with regard to the valuation of the property. He further submitted that unless an opportunity is Page 4 of 5. granted to the Petitioners to file an objection to the Survey Knowing Commissioner before accepting the valuation furnished by such Commissioner, such practice of accepting the valuation would cause seriously prejudice to the Petitioners and other co- sharers.
10. Taking into consideration the aforesaid submissions, this Court is inclined to grant another opportunity to the Petitioners to file their objection to the Survey Knowing Commissioner. Accordingly, the order dated 25.03.2025 at Annexure-5 is hereby set aside. The Petitioners are directed to file their objection to the report of the Survey Knowing Commissioner within two weeks from today which shall be considered by the learned trial court at the time of passing a final order with regard to payment of Stamp Duty. Learned trial court shall act upon production of certified copy of this order.
11. With the aforesaid observation and direction, the CMP stands disposed of.
(Aditya Kumar Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 12-Mar-2026 14:59:59 Page 5 of 5.