Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.128 of 1994 In the matter of an appeal under Section 100 C.P.C, 1908. *** Prafulla Ch. Panigrahi & Another … Appellants. -VERSUS- Prafulla Kumar Panda & Others … Respondents. Counsel appeared for the parties: For the Appellants : Mr. S.K. Patnaik, Advocate. For the Respondents : Mr. G.K. Mishra, Advocate. Mr. G. Mohanty, Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 11.03.2025 :: Date of Judgment : 03.04.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the reversing Judgment. S.A. No.128 of 1994 Page 1 of 17 2. The appellants in this 2nd Appeal were the defendant Nos.1 and 2 before the Trial Court in the suit vide T.S. No.3 of 1984 and respondent Nos.1 and 2 before the 1st Appellate Court in the 1st Appeal vide T.A. No.8 of 1990. The respondent No.1 in this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.3 of 1984 and appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.8 of 1990. The respondent Nos.2 to 6 in this 2nd Appeal were the
Legal Reasoning
defendant Nos.3 to 7 before the Trial Court in the suit vide T.S. No.3 of 1984 and respondent Nos.3 to 7 before the 1st Appellate Court in the 1st Appeal vide T.A. No.8 of 1990. 3. The suit of the plaintiff (respondent No.1 in this 2nd Appeal) against the defendants (appellants and respondent Nos.2 to 6 in this 2nd Appeal) was a suit for declaration and permanent as well as mandatory injunction. 4. The case of the plaintiff in the suit vide T.S. No.3 of 1984 as per the averments made in his plaint was that, the suit properties were the properties of the State/Government. The father of the plaintiff i.e. Sarbeswar Panda had been possessing the suit properties since the year 1963 as the part S.A. No.128 of 1994 Page 2 of 17 of his house and homestead. During the stages of Kistiwari, Khanapuri and Bujharat in the Hal Settlement operation, the said suit properties were recorded in favour of the plaintiff. The defendant Nos.1 and 2 are the close relatives of the defendant No.6. Due to political rivalry between the plaintiff and defendant No.6, the defendant No.6 managed to initiate encroachment proceedings vide Encroachment Case Nos.1 and 2 of 1982-1983 in respect of the suit properties through the local R.I. illegally against the defendant Nos.1 and 2 and in that encroachment proceeding, the Tahasildar, Baramba settled the suit properties in favour of the defendant Nos.1 and 2 on dated 30.03.1983 suppressing the public notice, without inviting objection and without complying the principles of natural justice on the basis of false report of the R.I. about the possession of the defendant Nos.1 and 2 over the suit properties. When the plaintiff came to know about the said illegal settlement of the suit properties in favour of the defendant Nos.1 and 2, then, he (plaintiff) approached S.D.O., Collector, R.D.C. & Revenue Minister for setting aside the said illegal settlement of the suit properties in the name of the defendant S.A. No.128 of 1994 Page 3 of 17 Nos.1 and 2 and also issued statutory notices under Section 80 of the CPC, 1908 to the Collector, and Commissioner Government of Orissa Revenue Department, Bhubaneswar and after expiry of the statutory period of the notices, he (plaintiff) filed the suit vide T.S. No.3 of 1984 against the defendants praying for declaration that, the settlement of the suit properties in favour of the defendant Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-1983 is tainted with fraud and to declare such settlement as void, illegal and without jurisdiction and to injunct the defendant Nos.1and 2 permanently restraining them (defendant Nos.1 and 2) from entering into the peaceful possession of the plaintiff over the suit properties and to direct the Tahasildar, Baramba (defendant No.6) to settle the suit properties in the name of the plaintiff along with other reliefs, to which, he (plaintiff) is entitled. 5. Having been noticed from the Trial Court in the suit vide T.S. No.3 of 1984, the defendant Nos.1 and 2 contested the same by filing their joint written statement denying the averments made by the plaintiff in the plaint of the plaintiff taking their stands inter alia therein that, the suit of the S.A. No.128 of 1994 Page 4 of 17 plaintiff is hit and barred under Section 16 of the OPLE Act, 1972. The suit of the plaintiff for injunction simpliciter without declaration of title is not maintainable. The suit of the plaintiff is not maintainable for setting aside the settlement of the suit properties in favour of the defendant Nos.1 and 2, when the plaintiff has not challenged the order of settlement of the suit properties made in Encroachment Case Nos.1 and 2 of 1982-1983 before the appropriate forum. The plaintiff being the third person is not entitled to challenge the settlement of the suit properties in the name of the defendant Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-1983 under OPLE Act, 1972. The specific case of the defendant Nos.1 and 2 was that, they (defendant Nos.1 and 2) are in peaceful possession over the suit properties, but the plaintiff has no possession over the same and on the basis of their long possession over the suit properties for more than 30 years continuously, the Tahasildar, Baramba (defendant No.6) has settled the suit properties in their names in Encroachment Case Nos.1 and 2 of 1982-1983. S.A. No.128 of 1994 Page 5 of 17 The further case of the defendant Nos.1 and 2 was that, Encroachment Case No.1 of 1982-1983 was booked against the defendant No.1 in respect of Ac.0.19 decimals of Plot No.15 and Encroachment Case No.2 of 1982-1983 was booked against defendant No.2 in respect of Ac.0.10 dec. of plot No.15. In both the Encroachment Cases, due/proper proclamations were made as per law and the suit properties have been settled properly in favour of the defendant No.1 in respect of Ac.0.19 Decimals and in favour of defendant No.2 in respect of Ac.0.10 Decimals as per Section 8A of the OPLE Act, 1972 according to the notification No.1054 dated 14.07.1983 of the Government on payment of 50% market value thereof by them (defendant Nos.1 and 2). Accordingly, they (defendant Nos.1 and 2) are the owners and in possession over the suit properties, but the plaintiff has filed the vexatious suit against them (defendant Nos.1 and 2) for no other reason, only in order to harass them. As such, the plaintiff has no interest in the suit properties. For which, the suit filed by the plaintiff is liable to be dismissed against them (defendant Nos.1 & 2). S.A. No.128 of 1994 Page 6 of 17 The defendant Nos.3 to 5 filed their joint written statement in support of the defendant Nos.1 and 2 for the dismissal of the suit of the plaintiff. The Tahasildar and Collector i.e. defendant Nos.6 & 7 also filed their joint written statement stating that, the suit properties have been settled in Encroachment Case Nos.1 and 2 of 1982-1983 properly in the name of the defendant Nos.1 and 2 on the basis of their long and continuous possession for more than 30 years as per Section 8A of the OPLE Act, 1972 according to law. For which, the suit of the plaintiff is liable to be dismissed against them (defendant Nos.6 & 7). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 8 numbers of issues were framed by the Trial Court in the suit vide T.S. No.3 of 1984 and the said issues are: ISSUES Is the suit maintainable? Is the suit barred by the laws of limitation? Is the suit barred for misjoinder of parties? Has the Court jurisdiction and power to try this suit? Is the suit hit by Section 16 of the Orissa Prevention of 1. 2. 3. 4. 5. Land Encroachment Act, 1972? 6. by him? 7. the suit land by the state in favour of the Defendant No.1? Was the plaintiff in possession of the suit land as claimed Is there any illegality or irregularity in the grant of lease of S.A. No.128 of 1994 Page 7 of 17 8. Is the plaintiff entitled to any relief and if so, what? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, the plaintiff examined 12 numbers of witnesses from his side including him (plaintiff) as P.W.3 and relied upon the documents vide Ext.1 to 52 on his behalf. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined 5 witnesses on their behalf including the defendant No.1 as D.W.3 and relied upon the documents vide Ext.A to N from their side. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered issue Nos.1,4,7 & 8 against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the Trial Court in the issue Nos.1,4,7 & 8, the Trial Court dismissed the suit of the plaintiff vide T.S. No.3 of 1984 on contest against the defendants as per its Judgment and Decree dated 20.07.1990 and 17.08.1990 respectively assigning the reasons that, the suit properties have been settled in favour of the defendant Nos.1 and 2 properly as per law after observing all legal S.A. No.128 of 1994 Page 8 of 17 formalities in Encroachment Case Nos.1 and 2 of 1982-1983. The plaintiff was/is not in possession over the suit properties at any point of time. For which, the plaintiff is not entitled for the reliefs sought for by him in his plaint. 9. On being dissatisfied with the aforesaid Judgment and Decree i.e. dismissal of the suit of the plaintiff vide T.S. No.3 of 1984 passed by the trial court, he (plaintiff) challenged the same by filing the 1st Appeal vide T.A. No.8 of 1990 being the appellant against the defendants arraying the defendants as respondents. After hearing from both the sides, the First Appellate Court allowed that 1st Appeal vide T.A. No.8 of 1990 of the plaintiff and set aside the Judgment and Decree of dismissal of the suit vide T.S. No.3 of 1984 passed by the Trial Court as per its Judgment and Decree dated 19.03.1994 and 26.03.1994 respectively and declared that, the order of settlement of the suit properties made by the Tahasildar, (defendant No.6) in favour of defendant Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-1983 is void, illegal, without jurisdiction and the same does not confer any right upon them (defendant Nos.1 and 2). So, they (defendant Nos.1 S.A. No.128 of 1994 Page 9 of 17 and 2) are permanently restrained from interfering in the possession of the plaintiff over the suit properties assigning the reasons that, “the documents prepared during the stage of the settlement vide Ext.2 at the stage of Yadast are going to show that, the plaintiff is in possession over the suit properties, but the defendant Nos.1 and 2 are not in possession over the same. That apart, no opportunity of hearing has been given to the plaintiff in the Encroachment Case Nos.1 and 2 of 1982-1983 by the Tahasildar (defendant No.6) for passing its final order. Exts.D & E are going to show that, no proclamation was made in the Encroachment Case Nos.1 & 2 of 1982-1983 either on the suit properties or on the suit village or any place which is mandatorily required as per the Rule 15 of the OPLE Act, 1972 and there is no material in the record to show on behalf of the defendants about the fixing up of any date for appearance of the public in the said Encroachment Case Nos.1 & 2 of 1982-1983. Though, the suit properties have been settled in favour of the defendant Nos.1 and 2 on the ground that, they are landless persons, but, in fact they had/have landed properties. For which, the defendant Nos.1 and 2 have managed to settl the suit properties in their names illegally gaining over the defendant Nos.6 & 7 practising fraud.” 10. On being aggrieved with the aforesaid Judgment and Decree passed by the 1st Appellate Court in T.A. No.8 of 1990 in favour of the plaintiff and against the defendant Nos.1 and 2, the defendant Nos.1 and 2 challenged the same by S.A. No.128 of 1994 Page 10 of 17 preferring this 2nd Appeal being the appellants against the plaintiff and defendant Nos.3 to 7 arraying them as respondents. 11. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. Whether the 1st appellate court I. Judgment is to be vitiated on account of non- consideration of material evidence and what is the evidentiary value of records prepared by the Settlement Authorities prior to the finalization of the Record of Rights? 12. I have already heard from the learned counsel for the appellants, learned counsel for the respondent No.1 and the learned Standing Counsel for the State. 13. In the suit vide T.S. No.3 of 1984, the plaintiff (respondent No.1 in this 2nd Appeal) had prayed for setting aside the settlement of the suit properties in the name of the defendant Nos.1 and 2 by the defendant No.6 in Encroachment Case Nos.1 and 2 of 1982-1983 on the ground of non-compliance of the mandatory provisions of the OPLE Act 1972 and Rules thereof and for non-giving any opportunity of being heard to the plaintiff in the said Encroachment Case Nos.1 & 2 of 1982-1983. S.A. No.128 of 1994 Page 11 of 17 Though, the learned Trial Court through a cryptic observation in issue Nos.1,4 & 5 held that, the suit properties have been properly settled in the names of the defendant Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982- 1983 after complying all the statutory provisions and Rules of the OPLE Act and Rules thereof, but the 1st Appellate Court discarded the same holding that, for settlement of the suit properties in Encroachment Case Nos.1 and 2 of 1982-1983 in the names of the defendant Nos.1 and 2, the mandatory statutory provisions in the OPLE Act, 1972 and Rules thereof have not been duly complied with 14. Now, the question arises, whether the Civil Court has jurisdiction to set aside the final order of settlement of the suit properties in favour of the defendant Nos.1 and 2 passed by the statutory tribunal under OPLE Act, 1972 in Encroachment Case Nos.1 and 2 of 1982-1983 on the ground of non-compliance of the mandatory provisions of law? On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions: S.A. No.128 of 1994 Page 12 of 17 I.
Legal Reasoning
In a case between Sri Bharat Jena & Three Others Vs. Sri Narayan Jena & Others reported in 2014 (Supp.-II) OLR 132, “Even if a statute bars the jurisdiction of the Civil Court, any order passed under the provisions of such statue is always open to be questioned in a civil suit on the ground of none following the procedure laid down in the Act or passing of orders which are not contemplated under the Act.” (Para No.4). II. In a case between Jagannath @ Jagamohan Dharua & Others Vs. Prithwiraj Singh Dharua & Others reported in 2006 (I) CLR 182, “Civil Court would have jurisdiction to examine a case where the statutory tribunal has not complied with the provision of the Act or has not acted in conformity with the fundamental principles of judicial procedure or the order is unfair, capricious or arbitrary. It is however, to be noted that even though Civil Court would have jurisdiction in the above noted situation, yet it cannot substitute its own decision for that of the tribunal but would simply give a direction to dispose of the case in accordance with law. In other words, even if the tribunal decides facts wrongly while exercising its legal jurisdiction, Civil Court cannot interefere with the finding.” (Para No.7) III. In a case between Smt. Champabati Devi Vs. Duryodhana Swain (dead) & after him Ashok Kumar Swain & Others reported in 102 (2006) CLT 279, “If the statutory Tribunal acts in excess of its jurisdiction or does not act in conformity with the statutory provisions and procedures or passes unfair, arbitrary or capricious order, then Civil Court as Court of general jurisdiction can assume jurisdiction to decide the legality of the order of Tribunal. IV. In a case between Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna reported in AIR 1997 (SC) 3082 that, where the fundamental principles of procedure are not followed by the tribunal for passing an impugned order, in that case, the jurisdiction of the civil Court is not S.A. No.128 of 1994 Page 13 of 17 ousted/excluded to entertain a suit for examination of a limited aspect i.e. whether the fundamental Principles of procedure were followed or not by the statutory tribunals for passing the impugned order. (Para No.15). 15. When, as per the discussions and observations made above, the findings and observations made by the Trial Court in support of the settlement of the suit properties by the defendant No.6 (Tahasildar, Baramba) in favour of the defendant Nos.1 and 2 (appellants in this 2nd Appeal) in Encroachment Case Nos.1 and 2 of 1982-1983 are cryptic and when the Judgment and Decree passed by the 1st Appellate Court for setting aside the order of settlement of the suit properties in the name of the defendant Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-1983 for non- compliance of mandatory statutory provisions of the OPLE Act and Rules thereof are clearly in detail, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, I find no justification under law to be disagreed with such findings and observations made by the 1st Appellate Court. S.A. No.128 of 1994 Page 14 of 17 When it is the settled propositions of law that, when the civil court comes to a conclusion that, the statutory tribunal has not discharged its duties in confirmtiy with the fundamental principles of the Acts and Rules, then, in such a situation, the Civil Court has only power to direct the tribunal to dispose of the case afresh in accordance with the law after setting aside the Order of settlement made by the statutory tribunal, then, at this juncture, the Civil Court has only jurisdiction to set aside the order of settlement made by the statutory tribunal and to remit back the matter to the statutory tribunal for its fresh decision in accordance with law after complying the mandatory provisions of the Act and Rules thereof. For which, the entire Judgment and Decree of the 1st Appellate Court cannot be sustainable under law. Because, the learned 1st Appellate Court has set aside the order of settlement of the suit properties made by the defendant No.6 (Tahasildar, Baramba) in Encroachment Case Nos.1 and 2 of 1982-1983 in favour of the defendant Nos.1 & 2 on the ground of non-compliance of the mandatory statutory provisions of OPLE Act and Rules thereof without remitting S.A. No.128 of 1994 Page 15 of 17 back the matter to the statutory tribunal to decide the Encroachment Case Nos.1 and 2 of 1982-1983 afresh as per law after complying the mandatory statutory provisions of the OPLE Act, 1972 & Rules thereof. So, in view of the above discussions and observations made above, there is some merit in the 2nd Appeal of the appellants (defendant Nos.1 and 2). The same must succeed in part. In result, the appeal filed by the appellants (defendant Nos.1 and 2) is allowed in part. The impugned Judgment and Decree passed by the Trial Court in the suit vide T.S. No.3 of 1984 as well as by the 1st Appellate Court in T.A. No.8 of 1990 are set aside in part on contest but without cost. 16. The suit be and the same filed by the plaintiff (respondent No.1 in this 2nd Appeal) vide T.S. No.3 of 1984 is decreed in part on contest against the defendants. 17. The matter i.e. Encroachment Case Nos.1 and 2 of 1982- 1983 is remitted back to the defendant No.6 (Tahasildar, Baramba) to decide the said Encroachment Case Nos.1 and 2 of 1982-1983 afresh as per law in conformity with the OPLE S.A. No.128 of 1994 Page 16 of 17 Act, 1972 and Rules thereof after giving opportunity of being heard to the parties of the suit vide T.S. No.3 of 1984 or their successors if any, and directed to dispose of the Encroachment Case Nos.1 and 2 of 1982-1983 as expeditiously as possible within a period of 4 (four) months from the date of communication of this Judgment. 18. Registry is directed to communicate this Judgment to the Tahasildar, Baramba immediately. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack 03 .04. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 04-Apr-2025 14:13:12 S.A. No.128 of 1994 Page 17 of 17