IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.545 of 2022 (In the matter of an application under Article 227 of the Constitution of India) Rafakat Hossain …. Petitioner -versus- Firdus Bibi and others …. Opposite Parties Appeared in this case:- For Petitioner : Mr. S.K. Nayak, Advocate For Opposite Parties : Mr. A. Sarmadi, Advocate (For the Opposite Party Nos.1 to 4) CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 21.01.2026 / date of judgment : 30.01.2026 A.C. Behera, J. This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioner(defendant no.7) against the Opposite Parties praying for quashing(setting aside) the impugned order dated 25.04.2022 (Annexure-5) passed in (F.D.)-143 of 1988 / 91/2001 by the learned Civil Judge(Junior Division), Bhadrak. 2. The petitioner in this Civil Miscellaneous Petition was the defendant no.7 in the suit vide C.S. No.143 of 1988 and the Opposite Parties in this Civil Miscellaneous Petition were the plaintiffs and other defendants in the said suit vide C.S. No.143 of 1988. 3. The factual backgrounds of this Civil Miscellaneous Petition, which prompted the petitioner for filing of the same is that, after the preliminary decree passed in the suit for partition vide C.S. No.143 of 1988, while final decree proceeding was going on in the court of the learned Civil Judge(Junior Division), Bhadrak, the defendant no.7 filed a petition on dated 20.01.2020 praying for allowing him to obtain his share from the properties covered under Ext.14 to Ext.14(E) along with his entitled share from the properties covered under Ext.B-1, Ext.C-1 and Ext.D-1 deducting the same from the share of his vendor, to which, the plaintiffs objected contending that, the final decree proceeding cannot go beyond the preliminary decree. For which, the petition dated 20.01.2020 of the defendant no.7 is liable to be rejected. 4. After hearing from both the sides, as per the impugned order dated 25.04.2022, the learned Civil Judge(Junior Division), Bhadrak rejected to the petition dated 20.01.2020 of the defendant no.7 assigning the reasons that, “survey knowing commissioner deputed in the final decree cannot divide the properties moving beyond the preliminary decree.” 5. On being aggrieved with the above impugned order dated 25.04.2022 passed in F.D. No.143 of 1988 by the learned Civil Judge(Junior Division), Bhadrak, the defendant no.7 challenged the same by filing this Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 being the petitioner against the Opposite Parties praying for quashing(setting aside) the aforesaid impugned order dated 25.04.2022 passed in F.D. No.143 of 1988. 6. I have already heard from the learned counsel for the petitioner and the learned counsel for the Opposite Party Nos.1 to 4(plaintiffs). 7. It is the settled propositions of law that, “in a suit for partition, if the Court thinks that, partition and separate possession cannot be conveniently made without further enquiry, then, pass a preliminary decree declaring rights of the parties and giving the directions as per the requirements of law. Thereafter, in the final decree proceeding of the said suit, survey knowing Amin commissioner is appointed as per Order-26, Rule-14 of the C.P.C., 1908 for dividing the suit properties in the filed as per preliminary decree. 8. When, it is the settled propositions of law that, final decree shall be passed on the basis of the directions made in the preliminary decree and the commissioner deputed in the final decree proceeding cannot divide the properties in the field between the parties moving beyond the preliminary decree unless specific direction is made by the Court for the same and when, the petitioner in this Civil Miscellaneous Petition being the defendant no.7 has his right to question/challenge to the report, allotment sheets and Maps prepared and submitted by the survey knowing Amin commissioner in the final decree vide F.D. No.143 of 1988 and when, the defendant no.7 has not stated anything in his petition about the submission of any report, allotment sheets and Maps by the survey knowing Amin commissioner in the F.D. No.143 of 1988, then at this juncture, the impugned order dated 25.04.2022 passed by the learned Civil Judge(Junior Division), Bhadrak rejecting the petition dated 20.01.2020 of the defendant no.7(petitioner in this Civil Miscellaneous Petition) cannot be held as erroneous. Because, the petition dated 20.01.2020 of the defendant no.7(petitioner in this Civil Miscellaneous Petition) was only in respect of the possible future report, allotment sheets and Maps of the survey knowing Amin Commissioner in F.D. No.143 of 1988. For which, the question of interfering with the same through this Civil Miscellaneous Petition filed by the petitioner does not arise. Page 5 of 5 9. Therefore, there is no merit in this Civil Miscellaneous Petition filed by the petitioner. The same must fail. In result, this Civil Miscellaneous Petition filed by the petitioner(defendant no.7) is dismissed on contest. 10. As such, this Civil Miscellaneous Petition filed by the petitioner is disposed of finally. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 30th of January, 2026/ Jagabandhu, P.A. Designation: Personal Assistant