The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.31 of 1996 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sobha Behera and Others Dhoba Parida (dead) and Others -versus- …. …. Appellants Respondents For Appellants - Mr. S.P. Mishra, Sr. Advocate Mr. R. K. Agarwal, Advocate For Respondents - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :09.07.2024:: Date of Judgment :13.08.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The predecessor of the appellants of this Second Appeal, i.e., Durga Charan Behera was the defendant before the Trial Court in the suit vide T.S. No.33 of 1986. The appellants in this Second Appeal being the successors of the defendant, i.e., Durga Charan Behera were the appellants before the 1st Appellate Court in the first appeal vide T.A. No.50 of 1990. SA No.31 of 1996 Page 1 of 19 // 2 // The predecessor of the respondents of this 2nd Appeal, i.e., Dhoba Parida was the sole plaintiff before the Trial Court in the suit vide T.S. 33 of 1986 and respondent before the 1st Appellate Court in the 1st appeal vide T.A. No. 50 of 1990. When, during the pendency of the Second Appeal, the respondent Dhoba Parida expired, then, in his place, his LRs. have been substituted as respondents. 3.
Legal Reasoning
The suit of the plaintiff i.e. Dhoba Parida (predecessor of the respondents) vide T.S. No.33 of 1986 against the defendant Durga Charan Behera (predecessor of the appellants) was a suit for declaration and permanent injunction. 4. The suit properties are Plot No.547/2900 under Khata No.341 in Mouza-Gadjit. According to the plaintiff, the suit properties were originally under the ex-intermediary estate of the-then Jamindar Dam Pradhan of Dampada and he (plaintiff) was a tenant of the said suit properties under the said ex-intermediary on payment of rent. Even, after abolition of the ex-intermediary estate, he (plaintiff) continued his possession over the suit properties as before. For which, during the Hal settlement operation in the year 1962, the R.o.R. of the suit properties has been published in Page 2 of 19 SA No.31 of 1996 // 3 // his name exclusively under Hal Khata No.341. But, when, the defendant without having any interest in the suit properties tried to interfere in the possession of the plaintiff over the suit properties, then, at the instance of the plaintiff, a proceeding under Section 144 of the Cr.P.C. vide criminal Misc. Case No.8 of 1978 was initiated in the Court of Executive Magistrate, Banki and in the said proceeding under Section 144 of the Cr.P.C., the defendant was restrained through a preliminary order dated 30.10.1978 from entering into the suit properties and the said order was made absolute as per order dated 29.11.1978 and as such the plaintiff continued his possession over the suit properties. But, when, the defendant filed an application on dated 30.12.1978 before S.D.M., Banki claiming his possession over the suit properties, then a proceeding in respect of the suit properties under Section 145 of the Cr.P.C. vide criminal Misc. Case No.49 of 1978 was initiated in the Court of S.D.M, Banki and in the said proceeding under Section 145 of the Cr.P.C., the possession of the defendant over the suit properties was declared. For which, the plaintiff challenged the same by filing a criminal revision vide criminal revision No.117 of 1983, but the said criminal revision of the plaintiff di i e . So, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.33 of 1986 against the defendant praying for declaration of his right, title and interest over the suit properties and to Page 3 of 19 SA No.31 of 1996 // 4 // injunct the defendant permanently from entering into the possession of the plaintiff over the suit properties along with other reliefs, to which, he (plaintiff) is entitled for. 5. Having been noticed from the Trial Court in the suit vide T.S. No.33 of 1986, the defendant contested the same by filing his written statement taking his stands inter alia therein that, the suit of the plaintiff is barred by the law of limitation, as the same has not been filed within one year from the date of the final order passed under Section 145 of the Cr.P.C. in criminal Misc. Case No.49 of 1978. The further pleas of the defendant were that, the plaintiff has/had no possession over the suit properties, but he (defendant) is in possession over the same being the exclusive owner thereof. The plaintiff has initiated the suit against him (defendant), in order to grab the suit properties from him (defendant). The plaintiff had never got the suit properties from the ex-intermediary of Dampada. As such, he (plaintiff) has no right, title, interest and possession over the suit properties. The preparation of the Hal R.o.R. of the suit properties in the name of the plaintiff is wrong and erroneous and the same is contrary to the true state of affairs. Because, the Settlement Authorities without inquiring into the matter, they have recorded the R.o.R. of the suit properties erroneously in the name of the plaintiff SA No.31 of 1996 Page 4 of 19 // 5 // behind the back of the defendant. He (defendant) is the actual owner and in possession over the suit properties and his possession was confirmed by the Learned S.D.M. in the Misc Case vide criminal Misc. Case No.49 of 1978 under Section 145 of the Cr.P.C. The further case of the defendant was that, his father (Lingaraj Behera) was a poor person, for which, the then ex-intermediary of Dampada had inducted his father Lingaraj Behera as a tenant in the suit properties as per the request of his father Lingaraj Behera. For which, during the Hal settlement operation, other properties (those are the adjacent to the suit properties), have been recorded in the name of his father Lingaraj Behera and the said Lingaraj Behera has divided all his properties including the suit properties among his five sons and in such distribution, the suit properties had fallen in the share of the defendant and as such, he (defendant) has been possessing the suit properties being the exclusive owner thereof for more than statutory period without any interference with the full knowledge of the plaintiff and thereby, he (defendant) has acquired the right, title, interest and possession over the suit properties. Therefore, the plaintiff has no interest or possession over the suit properties. For which, the suit of the plaintiff is liable to be dismissed against him (defendant) with costs. SA No.31 of 1996 Page 5 of 19 // 6 // 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the Trial Court in the suit vide T.S. No. 33 of 1986 and the said issues are:- I s s u e s (i) Whether the plaintiff got lease of the suit land from Ex-Zamindar of Damapara and remained in possession since then? (ii) Whether the entry in the name of the plaintiff in Hal settlement has been made correctly? (iii) Whether the defendant has acquired right, title and interest by way of adverse possession? (iv) Whether the suit is barred by limitation? (v) Whether the suit is undervalued? (vi) Whether the suit is maintainable? (vii) Is there any cause of action? (viii) To what relief the plaintiff is entitled to? 7. In order to substantiate the aforesaid relief(s), prayed for by the plaintiff against the defendant, he (plaintiff) examined 3 witnesses on his behalf including him as P.W.3 and relied upon the documents vide Exts.1 to 10. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined three witnesses from his side including him as D.W.3 and exhibited five documents on his behalf vide Exts.A to E. SA No.31 of 1996 Page 6 of 19 // 7 // 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues in favour of the plaintiff and against the defendant and on the basis of the findings and observations made by the Trial Court in the issues in favour of the plaintiff and against the defendant, the Trial Court decreed the suit of the plaintiff on contest against the defendant as per its judgment and decree dated 3.8.1990 and 14.08.1990 respectively without cost and declared the right, title, interest and possession of the plaintiff over the suit properties and also declared that, the defendant has got no manner of right, title, interest and possession over the same and restrained the defendant permanently from interfering into the possession of the plaintiff over the suit properties assigning the reasons that, the case of the plaintiff regarding his title and possession over the suit properties has become acceptable under law, as his claim finds support from the Hal R.o.R. vide Ext.3 and the rent receipts vide Exts.5 to 5/h, because after abolition of ex-intermediary system, the Government has accepted the plaintiff as the tenant of the suit properties by receiving the rents from him as well as publishing the R.o.R. of his suit properties in his name exclusively. But, whereas, the claim of title of the defendant over the suit properties is not supported with any documentary evidence. That apart, when, the defendant has claimed his title over the suit properties through Page 7 of 19 SA No.31 of 1996 // 8 // adverse possession, then, he (defendant) has indirectly admitted to the ownership of the plaintiff over the suit properties and due to failure of the defendant to establish his claim of title over the suit properties through adverse possession, the claim of possession of the defendant over the suit properties cannot be held as lawful. Therefore, the plaintiff is entitled for the reliefs in the suit as prayed for by him against the defendant in respect of the suit properties. 9. When, after the judgment and decree passed by the Trial Court in T.S. No.33 of 1996 in favour of the plaintiff and against the defendant, the defendant Durga Charan Behera expired, then, on being dissatisfied with the aforesaid judgment and decree dated 03.08.1990 and 14.08.1990 respectively passed by the Trial Court in the suit vide T.S. No.33 of 1986 in favour of the plaintiff and against the defendant, the LRs of the defendant challenged the same by preferring the 1st Appeal vide T.A. No.50 of 1990 being the appellants against the plaintiff arraying him (plaintiff) as respondent. 10. After hearing from both the sides, the 1st Appellate Court allowed that first Appeal vide T.A. No.50 of 1990 of the LRs of the defendant on dated 30.09.1993 and set aside the judgment and decree of the Trial Court passed in the suit vide T.S. No.33 of 1986 in favour of the plaintiff. SA No.31 of 1996 Page 8 of 19 // 9 // Thereafter, the plaintiff filed a Misc. Case vide Misc. Case No.11 of 1994 under Order 41, Rule 21 of the C.P.C. praying for rehearing of that first Appeal vide T.A. No.50 of 1990, in which judgment was passed on dated 30.09.1993 in favour of the LRs of the defendant. The said Misc. Case No.11 of 1994 under Order 41, Rule 21 of the C.P.C. of the plaintiff was allowed and the earlier judgment of the first appeal vide T.A. No.50 of 1990, which was passed on dated 30.09.1993 was recalled by the 1st Appellate Court and an order was passed for re-haring of the said 1st appeal vide T.A. No.50 of 1990. Thereafter, the rehearing of that first appeal vide T.A. No.50 of 1990 was made by the 1st Appellate Court from both the sides. After rehearing of that 1st appeal vide T.A. No.50 of 1990 filed by the LRs of the defendant from both the sides, the first Appellate Court dismissed that 1st Appeal vide T.A. No.50 of 1990 of the LRs of the defendant and confirmed the judgment and decree of the Trial Court passed in the suit vide T.S. No.33 of 1986, as per its judgment and decree dated 18.12.1995 and 11.01.1996 respectively in T.A. No.50 of 1990. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide T.A. No.50 of 1990 of the LRs of the defendant passed by the 1st Appellate Court on dated 18.12.1995 and SA No.31 of 1996 Page 9 of 19 // 10 // 11.01.1996 respectively, the LRs of the defendant challenged the same by preferring this 2nd appeal being the appellants against the plaintiff arraying him (plaintiff) as respondent. 12. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- 1. Whether the lower appellate Court was justified in re-hearing the 1st appeal on untenable grounds? 2. Whether the Courts below committed an error in not considering the documentary evidence on the side of the defendants i.e. Exts.A & B? 3. Whether Courts below are correct in decreeing the pl intiff’ uit in b ence of proper identity of the land in question? 4. Whether the lower Court was correct in not properly considering the evidence on the side of the defendant with regard to his possession over the suit properties? 13. When, during the pendency of the 2nd appeal, the respondent (plaintiff) expired, then in his place, his LRs have been substituted as respondents. 14. I have already heard from the learned counsel for the appellants only, as none appeared from the sides of the respondents to participate in the hearing of this 2nd appeal. SA No.31 of 1996 Page 10 of 19 // 11 // 15. So far as, the first formulated substantial question of law i.e. whether the lower appellate Court was justified in re-hearing the appeal on untenable grounds is concerned; It appears from the record that, the rehearing of the first Appeal vide T.A. No.50 of 1990 under order 41, rule 21 of the C.P.C. was allowed as per Misc. Case vide Misc. Case No.11 of 1994 filed by the respondent (plaintiff) on the ground that, previous judgment of that first appeal vide T.A. No.50 of 1990 was passed without hearing from the engaged counsel of the respondent (plaintiff), as he being a very old and ailment person was bedridden, by that time, due to the fracture of his left petila. Therefore, for such justifiable reason, he was prevented from appearing in the Court to participate in the hearing of the 1st Appeal. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:- (i) AIR 1983 (S.C.) 318: Savithri Amma Seethamma Vrs. Aratha Karthy & Others—Civil P.C.(5 of 1908), S.115 and O.41, R.21— Revision application heard and decided against non-applicant ex- parte—N.A.s counsel being occupied in another Court, held, had sufficient cause for not being present at the hearing—High Court ought to have allowed re-hearing applying principle under Order 41, Rule 21 of the C.P.C.,1908. 16. When, the 1st Appellate Court had allowed the Misc. Case No.11 of 1994 under order 41, rule 21 of the C.P.C. of the respondent (plaintiff) for rehearing of the 1st Appeal assigning a justifiable reason that, the Page 11 of 19 SA No.31 of 1996 // 12 // counsel for the respondent (plaintiff) was not present at the time of hearing due to his severe ailment being bedridden, then, in view of the propositions of law enunciated by the Apex Court in the ratio of the aforesaid decision, it cannot be held that, the 1st Appellate Court was not justified for passing an order in Misc. Case No.11 of 1994 under Order 41, Rule 21 of the CPC, 1908 for rehearing of the 1st appeal vide T.A. No.50 of 1990 after setting aside its judgment dated 30.09.1993 17. So far as, the 2nd substantial question of law i.e. whether the Courts below committed an error in not considering the documentary evidence on the side of the defendant, i.e., Exts.A & B are concerned; Exts.A and B relied by the defendant are parcha and R.o.R. respectively. Ext.A relates to Khata No.431 and Ext.B, relates to Khata No.711. But the suit land is under Khata No.341 Plot No.547/2900. So, Exts.A and B has no relation/nexus/connection with the suit properties. When, Exts.A and B relied by the defendant have no nexus/connection with the suit land, then at this juncture, it cannot be held that, the Courts below have committed an error in not considering the Exts.A and B relied by the defendant. SA No.31 of 1996 Page 12 of 19 // 13 // 18. So far as, the third formulated substantial question of law i.e. hether Court belo re correct in decreeing the pl intiff’ uit in absence of proper identity of the land in question is concerned; Here, in this suit/appeal at hand, the defendant has claimed his title over the suit properties through adverse possession. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decision:- 2008 (3) C.C.C. 173 (P.&H.): Jagat Singh & Others Vrs. Srikishan Dass & Others—Once a plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, the argument on behalf of the defendant that, the property is not identifiable falls to the ground. (Para-5) When, the defendant has claimed his title over the suit properties through adverse possession in his written statement indirectly admitting the identity of the suit properties, then at this juncture, in view of the propositions of law enunciated in the ratio of the above decision, the defendant is precluded under law to dispute the identity of the suit properties. Therefore, it cannot be held that, there was no proper identity of the suit properties. SA No.31 of 1996 Page 13 of 19 // 14 // 19. So far as, the fourth and last formulated substantial question of law i.e. whether the lower Court was correct in not properly considering the evidence on the side of the defendant with regard to his possession over the suit properties is concerned;
Legal Reasoning
During the course of hearing of this 2nd appeal, the learned counsel for the appellants contended that, when, in a proceeding under Section 145 of the Cr.P.C. vide criminal Misc. Case No.49 of 1978, the possession of the defendant has already been declared, then, it should be deemed that, the defendant is in lawful possession over the suit properties, for which, the suit of the plaintiff for declaration of title and permanent injunction in respect of the suit properties is not maintainable under law. Because, the defendant is in lawful possession over the suit properties on the basis of the declaration of his possession in the proceeding under Section 145 of the criminal case vide criminal Misc. Case No.49 of 1978. It has been specifically indicated by the appellant in Para No.3 of the appeal memo that, as per the final order passed on dated 29.11.1978 in a proceeding under Section 144 of the Cr.P.C. vide criminal Misc. Case No.8 of 1978 between the parties in respect of the suit properties, the defendant was restrained from entering into the suit properties and SA No.31 of 1996 Page 14 of 19 // 15 // from creating any disturbances in the peaceful possession of the plaintiff over the suit properties. Subsequent thereto, as per the final order dated 26.07.1983 passed in Misc. Case No.49 of 1978 under Section 145 of the Cr.P.C., the possession of the defendant over the suit properties was declared. Thereafter, the plaintiff filed the suit challenging, the said final order passed in Misc. Case No.49 of 1978 under Section 145 of the Cr.P.C. praying for declaration of his right, title, interest and possession over the suit properties and to injunct the defendant permanently from creating any sort of disturbance in his lawful possession over the suit properties. The law concerning the effect of a declaration of possession in favour of a party in respect of the suit properties in a proceeding u/s 145 Cr.P.C. and its relevance in the subsequent civil suit for the same properties has already been clarified by the Apex Court in the ratio of the following decision:- 2004 (27) OCR (S.C) 82: Shanti Kumar Panda Vrs. Shakuntala Devi—Code of Criminal Procedure, 1973— Sec. 145—finding recorded by Executive Magistrate is not binding on any competent Court including Civil Court— The competent Court would be free to record its own finding which may be contrary to or inconsistent with the finding arrived at by the Magistrate—Civil Court has jurisdiction to pass an order of injunction inconsistent with the order of Executive Magistrate. (Para 17) SA No.31 of 1996 Page 15 of 19 // 16 // 20. Here, in this suit/appeal at hand, the defendant has claimed his title over the suit properties against the plaintiff through adverse possession. As per law, the claim of title through adverse possession by the defendant against the plaintiff over the suit properties itself is an indirect admission to the title of the plaintiff over the suit properties by the defendant. On this aspect, the propositions of law has already been clarified by the Hon’ble Court in the r tio of the follo ing deci ion :- (i) 2008 (3) CCC 173 (P. & H.)—Jagat Singh and others Vrs. Srikishan Dass and others—Suit for possession filed by plaintiff—Defendant raised plea of adverse possession over the suit land—Held, once a plea of adverse possession is raised, it pre- supposes the title of the plaintiff over the suit land. (ii) 2008(4) CCC 239 (P&H)—Gurbax Singh Vrs. Karnail Singh—Adverse Possession— The plea of adverse possession of the defendant necessarily implies the admission of the title of the plaintiff. (iii) 2005(3) CCC 167 (Mad.)—Pappayammal Vrs. Palanisamy & Ors.—Plea of adverse possession—A party can plead adverse possession, only when, he admits that, another party has got title. 21. As per law, an Executive Magistrate in a proceeding under Section 145 of the Cr.P.C. has no jurisdiction to decide the right to possession or legal possession of a party, but, the right to possession or legal possession in respect of the properties shall only be decided by the competent Civil Court. An order relating to possession of the properties passed in a SA No.31 of 1996 Page 16 of 19 // 17 // proceeding under Section 145 of the Cr.P.C. like an order passed in Misc. Case No. No.49 of 1978 is only a temporary order and the same is to be operative until one or other of the parties obtains a determination of his/her right in a Civil Court. 22. Here, in this suit/appeal at hand, the defendant has failed to establish the necessary essentials of adverse possession ,i.e.,(i) the date of starting of his possession over the suit properties, (ii) the date of starting of his hostile possession over the suit properties denying the title of the plaintiff on the same and (iii) the date of maturity of his adverse possession to title. Therefore, the claim of possession of the defendant over the suit properties cannot and shall not be treated as legal. On the other hand, the claim of lawful title and possession of the plaintiff over the suit properties has become acceptable under law, because, his such claim is corroborated through the documents i.e. R.o.R. in his name and acceptance of the Govt. to him (plaintiff) as the owner thereof by receiving rents from him continuously. 23. It is the concurrent findings of the Trial Court and 1st Appellate Court through appreciation of materials along with oral and documentary evidence of the parties that, the plaintiff has his lawful title and SA No.31 of 1996 Page 17 of 19 // 18 // possession over the suit properties, but, the defendant has no lawful title or possession on the same. When, as per the concurrent findings of facts and law by the Trial Court and 1st Appellate Court, i.e., both the Courts have held that, the plaintiff has his lawful title and possession over the suit properties, but, the defendant has no lawful title or possession on the same and when, on the basis of the aforesaid findings and observations made by the Trial Court and 1st Appellate Court, both the Courts have declared the title and possession of the plaintiff over the suit properties and also have injuncted the defendant permanently by restraining him (defendant) from interfering into the possession of the plaintiff over the suit properties, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellants (LRs of the defendant) does not arise. Therefore, there is no merit in the appeal of the appellants. The same must fail. 24. In result, the appeal filed by the appellants (LRs of the defendant) is dismissed on merit, but without cost. SA No.31 of 1996 Page 18 of 19 // 19 // The judgment and decree passed by the Trial Court in. T.S. No.33 of 1986 and the confirmation of the same by the 1st Appellate Court in T.A. No.50 of 1990 is confirmed. Orissa High Court, Cuttack 13th of August, 2024/ Binayak Sahoo// Junior Stenographer (A.C. Behera), Judge Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Aug-2024 19:46:51 SA No.31 of 1996 Page 19 of 19