Judgment:
A.S. Naidu, J.
1. The Order-Dated 8.8.2008 passed by the Learned Civil Judge (Senior Division), Jagatsihghpur in C. M.A. No. 37 of 2008 arising out of C.S. No. 115 of 2007 is assailed in this Writ Petition. The present Petitioner is Defendant No. 1 in C.S. No. 115 of 2007. To appreciate the inter se pleadings, some of the facts of the case would be necessary to be stated.
2. Admittedly, Late Laxmidhar Das was the original owner in respect of the suit schedule properties and some other properties. Laxmidhar had two sons, being Radheshyam Das and Baidyanath Das. Radheshyam had two sons, namely, Nrusingh Ch. Das and Swadhin Ku. Das. Bishnu, Manoranjan and Prabhu, are the sons of Baidyanath. For the sake of better understanding, the genealogy of the family is given hereinbelow:
Late Laxmidhar DasLate Radheshyam Das Baidyanath Das (O.P.3)= Basanta Monjari Das(wife) | | || Bishnu(O.P.1)Prabhu Manoranjan(O.P.2)Nrusingha Ch. Das Swadhin Ku. Das
3. It is submitted that Radheshyam Das during his life time executed a sale deed in favour of Bishnu Charan Das, Prabhu Ch. Das & Manoranjan Das. Validity of said sale deed was challenged by Swadhin Ku. Das & Nrusingha Charan Das, sons of Radheshyam Das & Basanta Kumari Das, wife of Radheshyam in T.S. No. 176 of 1998 in the Court of Civil Judge (Senior Division), Jagatsinghpur.The said suit was however dismissed & the sale deed executed by Radheshyam Das was found to be a valid document conferring right, title & interest in favour of Bishnu, Prabhu & Manoranjan, sons of Baidyanath Das. Being aggrieved by the Judgment & decree, the present Petitioner, Swadhin Kumar Das as sole Appellant filed an appeal before this Court, which has been registered as RFA No. 192 of 2007 & is still subjudice. While the matter stood thus, Bishnu & Manoranjan, as Plaintiffs, filed C.S. No. 115 of 2007 in the Court of Learned Civil Judge (Senior Division), Jagatsinghpur inter alia, praying for partition of the lands which fell to the share of their father Baidyanath. The properties purchased by the aforesaid two persons along with Prabhu from Radheshyam were also made part of the suit schedule properties. The present Petitioner who has been impleaded as Defendant No. 1 & is a beneficiary under the sale deed executed by Radheshyam filed petition in C.S. No. 115 of 2007 with a prayer to stay further proceeding of the said suit till disposal of RFA No. 192 of 2007 pending before this Court. The said petition having been dismissed, the Petitioner has approached this Court.
4. According to Mr. Kar, Learned Counsel for the Petitioner, the question as to whether the sale deed executed by Radheshyam in favour of the Petitioner as well as the Plaintiffs of C.S. No. 115 of 2007 is held to be valid, no preliminary decree for partition can be passed.
5. The aforesaid submission is strongly repudiated by Mr. V. Narsingh, Learned Counsel appearing for the Plaintiffs of C.S. No. 115 of 2007. It is submitted that pendency of the appeal before this Court has absolutely no nexus with the further proceedings of C.S.No.115 of 2007, more so because the Petitioner is also a beneficiary under the sale deed, which has been held to be valid in C.S. No. 176 of 1998. In the alternative, Mr. Narsingh submitted that even if the appeal is allowed by this Court, the parties can work out their remedies in consonance with Section 144, C.P.C. Thus, stay of further proceedings of C.S.No.115 of 2007, which is a suit for partition and involves other joint family properties, would cause irreparable harassment and prejudice to the parties.
6. After hearing Learned Counsel for the parties and after going through the materials available, this Court finds some force in the submission made by Mr. Narsingh. In fact the Petitioner is also a beneficiary under the sale deed executed by Radheshyam. The validity of the said sale deed has already been upheld in T.S. No. 176 of 1998. Of course, the said decree is under challenge before this Court in RFA No. 192 of 2007. In the aforesaid scenario, this Court feels that ends of justice and equity will be better served if the Trial Court is directed to proceed with the hearing of C.S. No. 115 of 2007, which is a suit for partition and where other joint family properties apart from the properties covered under the sale deed are involved, and pass a preliminary decree. Thereafter, if the parties desire, they or any of them may initiate a final decree proceeding under such eventuality. This Court, however, directs that the final decree shall not be sealed and signed without obtaining prior permission of this Court in RFA No. 192 of 2007 and/or till disposal of the said appeal. It is needless to say that the preliminary decree to be passed in C.S. No. 115 of 2007 would always be subject to the decision of the decree to be passed by this Court in RFA No. 192 of 2007. In the event the RFA is allowed by this Court & the sale deed is declared to be invalid, the properties covered in the said sale deed would be deleted from the schedule of the partition suit and the suit or decree passed therein would be confined only to other properties. 7. In view of the aforesaid discussion, this Court finds no reason to interfere with the impugned order. The Writ Petition is accordingly disposed of.