Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.9429 OF 2007 An application under Articles 226 & 227 of the Constitution of India. Dr.Rabindra Kumar Sahoo & anr. : Petitioners -Versus- State of Orissa & ors. : Opposite Parties For Petitioners : M/s.S.P.Mishra, Sr.Adv., S.P.Mohanty, G.Majhi, A.K.Nanda & G.N.Rana For O.Ps.1 to 3
Legal Reasoning
: Mr.S.Ghosh, AGA For O.P.4 : Mr.L.K.Moharana, Adv. For O.Ps.6(a) to 6(c), 7 & 8 : Mr.S.S.Mohanty & G.Sahu J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 08.02.2023 1. This case has a checkered history. On 7.1.1954, Mangara Oram, S/o.Suna Oram sold Ac.0.16 decimals of land to the father of Petitioner No.1 under RSD No.10/1954. On 18.1.1955, one Sukra Oram sold a portion of his land, i.e., Ac.0.16 decimals of land jointly to the father of the Petitioners by unregistered sale deed dated 18.1.1955. It appears, the Page 1 of 6 // 2 // father of the Petitioners constructed their residential houses over the same. Kalia Oram S/o.Mangara Oram in 1968 filed Misc. Case No.25/1968 before O.P.3 under Regulation-2 of 1956, which matter came to be dropped on the ground that the transaction involved therein was prior to coming into force of Regulation-II of 1956. Misc. Case No.139/1976 was again brought by Kalia Oram before O.P.3, which was also dropped vide order dated 3.9.1977 on the ground that the proceeding got hit by principle of Res Judicata. Kalia Oram again brought Revenue Misc. Case No.3/1979 before O.P.3 alleged to be in suppression of dismissal of earlier proceeding. This matter was again dropped, vide order dated 4.1.1982. Being aggrieved, Kalia Oram preferred an Appeal registered as Revenue Appeal No.4/1982. It is alleged, even though the then O.P.2 at some point of time heard the Appeal but did not deliver the order. It is only his successor delivered the order. Being aggrieved by such illegal flaw, the Writ Application bearing O.J.C. No.3900/1987 was brought to the High Court. Realizing the illegal flaw at the instance of the Public Authority in handling the Appeal process, this Court by order dated 12.11.1992 interfered in the appellate order and remanded the proceeding in Revenue Appeal No.04/1987 for fresh hearing and disposal. The appeal proceeding came to be freshly disposed of on 21.3.2007, vide Annexure-2 involving a remand order impugned herein. Page 2 of 6 // 3 // 2. Mr.S.P.Mishra, learned senior counsel appearing for the Petitioners, non-Tribes taking this Court to the dispute involving the earlier proceedings claimed that since the Appeal involves the very same properties, the Appellate Authority ought to have considered on the application of principle of Res Judicata applying there. It is for no such consideration, reading through the observation of the Appellate Authority, Mr.Mishra, learned senior counsel, claimed, the impugned order becomes illegal. 3. Mr.L.K.Moharana, learned counsel for the contesting O.P.4, on the other hand, taking this Court to the properties involved in the previous proceedings claimed that in the last round of litigation, the Regulation-II
Decision
Proceeding involved in the Appeal disposed of, vide Annexure-2, did not involve the property already involved in the Proceedings and claimed, the matter was disposed of rightly. It is claimed, there is no material support to the Petitioners in the Appeal Proceeding to claim application for principle of Res Judicata. 4. This Court finds, there is rival contention of the Parties. One Party when claims the Regulation-II Proceeding is ultimately undertaken in Appeal exercise involved properties already involved in the previous Regulation-II Proceedings, the other Party counters such submission and claims, the Regulation-II Proceeding involved in the Appeal involved herein did not involve the same property. Page 3 of 6 // 4 // 5. In course of hearing, on perusal of the pleadings available, this Court since did not find any trace involving the property involved, in number of previous round of litigation, on asking both sides, this Court finds, both sides even failed in bringing any such material, more particularly, at least establishing that there is particular property involved in the previous round of litigation. 6. Considering the rival contentions of the Parties and on perusal of pleadings in Appeal, this Court nowhere finds any material to satisfy the Appeal again involved the properties already involved in the previous litigations. Parties in contest even fail to throw light on this aspect through material available on Record at least. This Court here finds, the moot question required to be considered in the Regulation-II Proceeding as to “whether the Proceeding involved in the Regulation-II Proceeding is hit by the principle of Res Judicata ?” In absence of cogent material throwing light on such issue, considering the Appellate Authority already remanded the Proceeding for fresh adjudication, for the opinion of this Court, there will be proper exercise in answering the question indicated herein above, if it involved the exercise of the Original Authority, both Parties have no objection to the same. 7. In the circumstance, this Court while declining to interfere with the impugned order passed by the Appellate Authority and thereby confirming the order of remand directing the Original Authority Page 4 of 6 // 5 // undertaking the fresh exercise in Misc. Case No.3/1979 to freshly dispose of the same but in the involvement of the Petitioner and the private O.Ps. herein, for there is requirement of a greater question being answered by the Original Authority, both the Parties are at liberty to bring further materials to establish on the property involved aspect involving all the concluded proceedings as well as involving the case at hand to satisfy their case on the question framed herein. If necessary, there may be also provision of recording of evidence of both the Parties. 8. This Court further observes, while determining the issue involving Misc. Case No.3/1979, for there is pleading that there has been some construction over the disputed property and Petitioners are in occupation of such properties, the Original Authority shall also keep in mind the direction of the Hon’ble Supreme Court in the case of Amarendra Pratap Singh vrs. Tej Bahadur Prajapati & ors : reported in 98(2004) CLT 19 (SC) in working out the benefit ultimately. 9. In view of the direction herein above, both the Parties are directed to appear before the Original Authority with a copy of this judgment on 19.12.2022. The further proceeding involving Misc. Case No.3/1979 shall also be concluded at least within a period of four months from the date of appearance of the Parties. It is also observed, if either of the Parties raises any question for determination therein should file memo indicating such question required to be decided. The Original Authority shall frame Page 5 of 6 // 6 // appropriate Issues and the ultimate outcome shall also involve all such Issues. In the fresh decision there shall be no influence of the observation, if any, in the Appeal order involved herein. 10. The Writ Petition though is disposed of but with directions herein above. No costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 8th February, 2023/Swarna, Junior Stenographer Page 6 of 6