Orissa High Court
Chandrasekhar Raula vs Gangadhar Raula And Ors. on 14 May, 1996
Equivalent citations: AIR1997ORI28, AIR 1997 ORISSA 28
Author: P. Ray
Bench: P. Ray
JUDGMENT D.M. Patnaik, J.
1. In this writ petition the petitioner, defendant No. 1 in a suit for partition, assails the orders dated 16-11-94 (Annexure-4) and 22-12-95 (Annexure-7) of the Civil Judge (Senior Division), Berhampur, in F. D. T. S. No. 25 of 1976 and the revisional order dated 16-2-96 (Annexure-
8) of the District Judge, Ganjam Berhampur in Civil Revision No. 8 of 1996.
2. The case of the parties is as follows:
Opposite party No. 1 filed Title Suit No. 25 of 1976 against the present petitioner and others for partition of the family property. In the said suit a claim was also made for distribution of the usufructs of the Palis performed by the members of the family as Sebayats of deity Chandrasekhar in Berhampur town. A preliminary decree was passed in the said suit defining the respective shares of the parties. The petitioner filed First Appeal No. 300 of 1970 before this Court. While disposing of the said first appeal on 2-11-93, this Court modified the trial Court decree holding that the plaintiff, the present petitioner and his mother (defendant No. 2) had each one-third share in the residential house of the parties. With regard to the 96 days Pali in a year available to the family for Seba Puja of the above deity this Court directed that each of them shall have 32 days of Pali in a year. Thereafter, the plaintiff, filed an application for final decree as per Annexure-2. In the said final decree proceeding opposite party No. 1 (plaintiff) filed a petition alleging that the present petitioner was not allowing him to perform the Seba Puja as per the direction of the Court and, therefore, prayed the Court to fix the specific days for performance of Pali. The Court considering the admission of both the parties that their mother had died during the pendency of the first appeal and that both had succeeded to her interest equally, held that the 8 days Pali in a month should be divided half and half. Since the petitioner is the elder brother, the Court allotted the first four days i.e. 9th to 12th days in the month to him and the rest four days i.e. 13th to 16th of the month in favour of opposite party No. 1. The present petitioner being aggrieved by that order dated 16-9-94 filed Civil Revision No. 53 of 95 which was also dismissed by the 2nd Additional District Judge, Berhampur on 25-7-95.
3. The main thrust of argument of Mr. Rao, learned counsel for the petitioner, is two fold. Firstly, allotment of equal Pali between the plaintiff and the petitioner (defendant No. 1) by he impugned order is illegal inasmuch as this petitioner did not concede before the Court the distribution of his mother's Pali half and half nor if any such concession was made by the learned counsel appearing for him, the same is not binding on him, and secondly, no preliminary decree can be made enforceable unless a final decree is drawn pursuant to such prelimintry decree.
Mr. Ratho, on the other hand strenuously urged that the plaintiff has been deprived of the Seba Puja as well as the usufructs received from the said Seba Puja for more than twenty years and this is being appropriated by the petitioner alone. It was further submitted by Mr. Ratho that the order dated 16-11-94 should have been challenged in ah appropriate civil forum and this having not been done, it would not be proper for this Court to enter into the disputed facts so pleaded.
4. Having gone through the impugned order (Annexure 4) we do not find any infirmity in the said order of the learned civil Judge for the reasons to follow :
In the first appeal this Court had only allotted to each of the parties 32 days Pali in a year since the Court was not informed about the mother's death. But this Court had not specified the days of Palis. In the petition for final decree proceeding the plaintiff claimed for, allotment of specific days in a month to perform the Pali. Admittedly by that time the mother and the sister of the parties had died. Therefore, the learned civil Judge on the face of admitted case of the parties found it appropriate to distribute the Pali half and half between the plaintiff and the petitioner. We do not find anything wrong in the said allotment of Pali which is based on a sound reasoning.
5. The point now raised by Mr. Rao is that the petitioner is entitled to two-third days of Pali on the ground that the plaintiff had not succeeded to the Palis allotted to the mother since he was staying separately from the mother and, therefore, had no right to succeed to her interest. In this context it was submitted that the petitioner did not concede and gave up his right to the one-third Pali of the mother.
This matter stands finally concluded in Civil Revision No. 53 of 95 of the Court of Additional District Judge, Berhampur vide his order dated 25-7-95. Mr. Rao has not brought to our notice that this revisional order has been set aside. Therefore, the order dated 16-11-94 of the learned Civil Judge now impugned before this Court has merged with the above revisional order. Further, the order dated 25-7-95 is not challenged before us in this writ petition. Therefore, we do not deem it proper to reopen that matter in a writ jurisdiction.
6. The other point raised by Mr. Rao that a preliminary decree is not enforceable unless a final decree proceeding allotting specific share is taken up, is no doubt correct. We have no quarrel over the point decided in the case cited by Mr. Rao reported in AIR 1988 Cal 1 (SB), Bholanath Karmakar v. Madanmohan Karmakar. A final decree proceeding must follow a preliminary decree proceeding where the question of division of specific movable or immovable property is concerned and unless this is done, the party cannot enjoy the specific share allotted to them. We do not find any infirmity in the order dated 16-11 -94.
So far as the order dated 22-12-95 of the learned civil Judge and the order dated 16-2-96 of the District Judge, Berhampur, are concerned, they are merely found to be consequential orders to the main order dated 16-11-94 because they relate to the direction of the Court for police help asked for by the plaintiff-opposite party. We do not find any infirmity in this order. Therefore, we find no reason to interfere with the above orders. The writ petition having no merit is dismissed, but without cost.
P. Ray, J.
7. I agree.