Safiya Malik

A recent judgment issued by the High Court of Orissa in an appeal under Order XLIII, Rule 1(u) of the Code of Civil Procedure, 1908, has led to the setting aside of a previously drawn final decree in a longstanding land partition dispute. The court remitted the case back to the trial court for a fresh partition of the disputed property, specifically directing the appointment of a Salaried Amin Commissioner to execute the partition in accordance with legal records.

The case originated when the plaintiff sought partition of certain lands described as "Ka" schedule property, which included multiple plots within Balasore District. The suit was initially dismissed by the trial court, leading the plaintiff to file an appeal. The first appellate court ruled in favor of the plaintiff, granting a preliminary decree for partition. The decision was subsequently challenged before the High Court in a second appeal, which upheld the lower appellate court's findings.

The disputed property included Plot No. 388, which was classified as a "Jalasaya" (water body) in revenue records. The plaintiff argued that this land had lost its original nature due to human intervention, making it subject to partition. The defendant, however, asserted that the land remained a water body and could not be partitioned under law. The trial court initially found in favor of the defendant, dismissing the suit, but the appellate court set aside this decision and granted a preliminary decree, directing partition of the land.

During the final decree proceedings, objections were raised regarding the mode of partition. The appellant claimed that the land classification was not properly considered and that outdated records had been used. Additionally, the appellant contended that the division of land was inequitable, as it did not take into account the nature and usability of the disputed property. The first appellate court, after reviewing the objections, set aside the final decree and ordered a fresh partition, leading to the present appeal before the High Court.

The High Court examined the findings of the lower courts and the arguments presented by both parties. The appellant maintained that unless the land type was legally converted from a water body to general land, partition could not be ordered. The appellant further argued that the lower court had erred in relying on oral evidence rather than official records, which continued to classify Plot No. 388 as a "Jalasaya."

The respondent countered that the appellant had previously admitted in her written statement that significant construction, including residential buildings and commercial establishments, had taken place on the disputed land. The court took note of this admission, stating:

"The Appellant having categorically pleaded that her husband constructed shop rooms, residential houses, and an ice factory by filling up the deep ditch in plot no. 388 cannot now turn around and claim that the land is not partible."

The court further noted that the appellant's objections amounted to an attempt to "approbate and reprobate"—a legal principle preventing a party from adopting contradictory positions in the same proceeding. It cited the Supreme Court’s decision in Union of India v. N. Murugesan (2022), which held that a party cannot accept one part of a transaction while rejecting another.

Moreover, the court observed that a final decree proceeding could not revisit issues already settled in a preliminary decree. It stated:

"No Court can go beyond the decree passed by a Competent Civil Court, unless the same is set aside or varied."

The court also examined revenue records and witness testimonies to determine the current status of Plot No. 388. The evidence suggested that the land, though originally classified as a water body, had been substantially altered over time, with multiple structures erected on it. Given this transformation, the court held that the land was no longer a Jalasaya in its original sense and could be partitioned among the parties.

Additionally, the court addressed the procedural concerns raised by the appellant regarding the reliance on outdated maps. It stated that a fresh partition exercise must be undertaken based on updated records, ensuring that the division reflects the current nature of the land.

In light of its findings, the High Court dismissed the appeal and upheld the order for a fresh partition of the suit property. It reaffirmed the lower appellate court’s directive that partition must be conducted based on updated land records rather than older maps, and that a Salaried Amin Commissioner must be appointed to oversee the process.

The court concluded:

"The learned District Judge, Balasore, by referring to the pleadings of the parties and admission of the D-1-cum-Appellant with regard to the disputed land in question in Plot No. 388 and on analysis has rightly come to a finding that the land in Plot No. 388 having lost all its characteristics of a Gadia (ditch) is partible amongst the parties."

The High Court dismissed the appeal on contest, with no order as to costs.

Case Title: Damayanti Sen v. Chabirani Sen & Others
Case Number: SAO No. 15 of 2023
Bench: Justice Gourishankar Satapathy

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