Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK R.S.A. No.386 of 2004 In the matter of an appeal under Section 100 C.P.C, 1908. *** Nigamananda Rath & Others … Appellants. -VERSUS- Siba Narayan Pati (dead) & Others … Respondents. Counsel appeared for the parties: For the Appellants : Mr. B. Panigrahi, Advocate. For the Respondents : Mr. B. Das, Advocate. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 07.04.2025 :: Date of Judgment : 16.04.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the confirming Judgment. R.S.A. No.386 of 2004 Page 1 of 21 2. The predecessor of the appellants in this 2nd Appeal i.e. Ambika Patel was the defendant No.1 before the Trial Court in the suit vide T.S. No.30 of 1981 and Appellant before the First Appellate Court in the 1st Appeal vide T.A. No.57 of 1997. After the death of the defendant No.1 Ambika Patel during the stage of 1st Appeal, her successors were substituted in her place as respondent Nos.1(a) to 1(c). The predecessor of the respondent Nos.1(a) to 1(g) in this 2nd Appeal i.e. Siba Narayan Pati was the sole plaintiff before the Trial Court in the suit vide T.S. No.30 of 1981 and respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.57 of 1997. After the death of Siba Narayan Pati during the stage of this 2nd Appeal, his successors have been substituted in his place as respondent Nos.1(a) to 1(g). Respondent Nos.2 to 38 in this 2nd Appeal were the
Legal Reasoning
defendant Nos.2 to 38 before the Trial Court in the suit vide T.S. No.30 of 1981 and respondent Nos.2 to 38 before the 1st Appellate Court in the First Appeal vide T.A. No.57 of 1997. R.S.A. No.386 of 2004 Page 2 of 21 3. The suit of the plaintiff vide T.S. No.30 of 1981 was a suit for declaration and for setting aside the Judgment and Decree passed in T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975. 4. As per the case of the plaintiff, Krushna Pati, Keshaba Pati, Madhaba Pati and Jadab Pati are the four sons of Ghana Pati. Ghana Pati died long back. The first son of Ghana Pati i.e. Krushna Pati died in the year 1952. The 2nd Son of Ghana Pati i.e. Keshaba Pati died in the year 1971 and the 3rd Son of Ghana Pati i.e. Madhab Pati died in the year 1972 leaving behind his son Jogeswar Pati. Jogeswar Pati died leaving behind his widow wife Bhargabi Pati and one son i.e. Siba Narayan Pati. The 4th son of Ghana Pati i.e. Jadab Pati died in the year1973. The suit properties originally belonged to the predecessors of the defendant Nos.1 and 2. The predecessor of the defendant Nos.1 and 2 had mortgaged the suit properties in favour of Krushna Pati, Keshaba Pati, Madhab Pati and Jadab Pati on dated 23.01.1925 and 28.09.1927 for R.S.A. No.386 of 2004 Page 3 of 21 Rs.10,000/- and Rs.3,000/- respectively. When the ancessestors of the defendant Nos.1 and 2 did not repay the mortgaged amount, then, Krushna Pati, Keshaba, Madhab Pati and Jadab Pati filed a suit vide T.S. No.32 of 1940 against the predecessor of defendant Nos.1 & 2 for a decree of foreclosure in the Court of Sub-Judge, Sambalpur and the said suit was decreed in favour of Krushna Pati, Keshaba Pati, Madhab Pati and Jadab Pati. The said suit vide T.S. No.32 of 1940 was also decreed finally in favour of Krushna Pati, Keshaba, Jadab Pati and Madhab Pati and possession thereof was delivered to them through Execution of the decree of the said suit vide Execution Case No.36 of 1943 on dated 04.04.1944. After getting the suit properties through execution since 04.04.1944, the 4 brothers i.e Krushna Pati, Keshaba, Madhab Pati and Jadab Pati possessed the suit properties being the owners of the same and mutated the same to their names and after mutation, they paid the rent of the suit properties to the Government in their names obtaining proper rent receipts. Thereafter, they (Krushna Pati, Keshaba, R.S.A. No.386 of 2004 Page 4 of 21 Madhab Pati and Jadab Pati) distributed the suit properties among them having 1/4th share in each. The defendant Nos.1 and 2 filed suits vide T.S. No.17 of 1971, T.S. No.59 of 1974, T.S. No.19 of 1975 and S.C.C. No.7/3 of 1975 against some members of the branch of Krushna Pati, Keshab Pati and Jadaba Pati in respect of the suit properties for declaration of their right, title, interest over the suit properties and for permanent injunction against them without impleading any members of the branch of the plaintiff and got the decrees in the said suits behind the back and without the knowledge of the plaintiff. For which, the Judgments and Decrees passed in the said suits in favour of the defendant Nos.1 & 2 are not binding upon the plaintiff. The plaintiff came to know about the said Judgments and Decrees for the first time on 31.10.1975 in the settlement camp at Bargarh and subsequently enquired about the same and obtained the copies of the said decrees and filed the suit vide T.S. No.30 of 1981 against the defendant Nos.1 and 2 arraying others as defendant Nos.3 to 38 as defendants praying for declaration of his right, title and interest over the R.S.A. No.386 of 2004 Page 5 of 21 suit properties and also to declare that, the Judgments and Decrees passed in the suit vide .S. No.17 of 1971, T.S. No.59 of 1974, T.S. No.19 of 1975 and S.C.C. No.7/3 of 1975 are not binding upon him and to set aside the said Judgments and Decrees. 5. Having been noticed from the Trial Court in the suit vide T.S. No.30 of 1981, the defendant No.1 contested the same by filing her written statement denying the averments made by the plaintiff in his plaint on the ground that, the suit of the plaintiffs for setting aside the Judgments and Decrees passed in T.S. No.17 of 1971, T.S. No.59 of 1974, T.S. No.19 of 1975 and S.C.C. No.7/3 of 1975 is barred by law of limitation. Her specific stands were that, neither the plaintiff nor his co-sharers had ever possessed the suit properties and likewise neither the plaintiff nor his co-sharers had their any right, title and interest over the same. The plaintiff had full knowledge about the above 4 suits as well as result of the same. For which, the plaintiff has no locus standie to challenge the Judgments and Decrees passed in the above 4 said suits. They (defendant Nos.1 and 2) are all along in R.S.A. No.386 of 2004 Page 6 of 21 possession over the suit properties since the time of their forefathers and during major settlement, they had also received draft Parcha in respect of the suit properties in their favour on the basis of the order passed in Settlement Appeal No.96 of 1976, for which, the suit of the plaintiff is liable to be dismissed. 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.30 of 1981 and the said issues are: ISSUES 1. 2. 3. 4. 5. 6. Is there any cause of action for the suit? Is the suit is barred by limitation? If the defendant No.1 and 2 have perfected a title to the suit property by adverse possession? If the suit is barred by the principles of resjudicata? If the plaintiff has any right, title, interest and possession in respect of the suit land? To what relief, if any? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendant Nos.1 and 2, the plaintiffs examined 4 numbers of witnesses from his side including him as P.W.1 and relied upon the documents vide Ext.1 to 24. R.S.A. No.386 of 2004 Page 7 of 21 On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant Nos.1 examined 3 witnesses on her behalf and relied upon the documents vide Ext.A to N. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court decreed the suit of the plaintiff vide T.S. No.30 of 1981 in part against the defendants as per its Judgment and Decree dated 30.09.1997 & 20.10.1997 respectively and declared that, the decrees passed in the suits vide T.S. No.17 of 1971, T.S. No.59 of 1974, T.S. No.19 of 1975 and S.C.C. No.7/3 of 1975 are not binding upon him (plaintiff) and also declared his 1/4th interest in the suit schedule properties assigning the reasons that, plaintiff has cause of action for filing of the suit. The suit of the plaintiff is not bared by the law of limitation and the defendant Nos.1 and 2 have not perfected their title over the suit properties through adverse possession and the plaintiff has 1/4th interest in the suit properties on the basis of the preliminary and final decree passed in T.S. No.32 of 1940 in his favour in respect of the suit properties, as the preliminary decree, final decree as well R.S.A. No.386 of 2004 Page 8 of 21 as final order passed in Execution Case No.36 of 1943 have not been set aside by the competent Court of Law and the Judgments and Decrees passed in T.S. No.17 of 1971, T.S. No.59 of 1974, T.S. No.19 of 1975 and S.C.C. No.7/3 of 1975 in favour of the defendant Nos.1 and 2 are not binding upon the plaintiff, because, the said Judgments and Decrees were passed without impleading the predecessor of the plaintiff or the plaintiff as a party in the same. 9. On being dissatisfied with the aforesaid Judgment and Decree passed by the Trial Court in the suit vide T.S. No.30 of 1981 in favour of the plaintiff and against the defendants, the defendant No.1 challenged the same by filing the 1st Appeal vide T.A. No.57 of 1997 being the appellant against the plaintiff and defendant No.2 & rest others arraying them as respondents. When during the pendency of the 1st Appeal, the appellant (defendant No.1) expired, then, her LRs were substituted in her place as Appellant Nos.1(a) to 1(c). After hearing from both the sides, the First Appellate Court dismissed to the First Appeal vide T.A. No.57 of 1997 of R.S.A. No.386 of 2004 Page 9 of 21 the defendant No.1 on contest as per its Judgement and Decree dated 23.07.2004 & 28.07.2004 respectively concurring/accepting the findings & observations made by the learned Trial Court in its Judgment and Decree. 10. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide T.A. No.57 of 1997 of the defendant No.1 passed by the 1st Appellate Court, the LRs of the defendant No.1 challenged the same by preferring this 2nd Appeal being the appellants against the plaintiff and defendant Nos.2 to 38 arraying them as respondents. When, during the pendency of this 2nd Appeal, the respondent No.1 (plaintiff Siba Narayan Pati) expired, then, his LRs have been substituted in his place as respondent Nos.1(a) to 1(g). 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. Whether the Plaintiffs claim in the I. instant suit is barred by Article 59 of the Indian Limitation Act, (a)When the Plaintiff’s unequivocal case is that the impugned decrees dtd. 17.4.72, 29.7.74, and 30.5.75 are to be set aside. R.S.A. No.386 of 2004 Page 10 of 21 (b) When the co-sharers of the present plaintiff were parties to the said suit. II. Whether the Learned Courts below were correct in applying the provision of Sec.14 of the Indian Limitation Act in view of the following dates: (a) (b) 15.11.75 - Suit filed. 12.12.80 -Court returns the plaint on the ground lack of pecuniary jurisdiction. 17.12.80 - On the Plaintiff's prayer directed Court appearance in the proper Court on 19.1.81. (c) (d) 14.5.81- The present Plaint filed.
Legal Reasoning
12. I have already heard from the learned counsel of both the sides. 13. When both the aforesaid formulated substantial questions of law are interlinked having ample nexus with each other as per the pleadings of the parties, findings and observations made by the Trial Court and First Appellate Court in their respective Judgments and Decrees, then, both the substantial questions of law are taken up together for their discussions hereunder: 14. It is the undisputed case of the parties that, Krushna Pati, Keshaba, Madhab Pati and Jadab Pati being the 4 sons of late Ghana Pati were 4 brothers. The preliminary decree R.S.A. No.386 of 2004 Page 11 of 21 passed in T.S. No.32 of 1940 in respect of the suit properties in favour of Krushna Pati, Keshaba, Madhab Pati and Jadab Pati as well as final decree thereof and recovery of possession through Execution Case No.36 of 1943 on the basis of the final decree passed in T.S. No.32 of 1940 in their favour in respect of the suit properties have not been set aside. Accordingly, undisputedly, the grandfather of the plaintiff i.e. Madhab Pati had 1/4th share in the suit properties, because, all 4 brothers i.e. Krushna Pati, Keshaba Pati, Madhab Pati and Jadab Pati had equal share in the suit properties having 1/4th share each. The plaintiff Siba Narayan Pati being the sole successor of Madhab Pati, after the death of his father Jogeswar Pati, he (Siba Narayan Pati) had inherited the 1/4th share of Madhab Pati in the suit properties. It is also the undisputed case of the parties that, in the suit vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 filed by the defendant Nos.1 and 2 in respect of the suit properties against some of the successors of Krushna Pati, Keshaba Pati & Jadab Pati, neither the father of the plaintiff R.S.A. No.386 of 2004 Page 12 of 21 i.e. Jogeswar Pati nor his mother Bhargabi Pati or the plaintiff Siba Narayan Pati were the parties. 15. The decrees in the suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 were passed without impleading anybody from the plaintiff’s branch. The above suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 in respect of the suit properties were the suit for declaration and permanent injunction. It is the settled propositions of law that, the declaration made under Section 34 of the Specific Relief Act does not operate as Judgment in Rem. A declaratory decree does not bind, the parties to the suit or the persons claiming through parties to the suit and the same does not bind anybody other than the parties to the suit. Likewise, the relief i.e. injunction is purely personal and independent. The matter relating to injunction is limited/concentrated only between the parties to the suit, not to anybody other than the parties to the suit. R.S.A. No.386 of 2004 Page 13 of 21 16. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions: I. II. III. IV. V. In a case between SNP Shipping Services Private Limited & Others Vs. World Tanker Carrier Corporation & Another reported in AIR 2000 Bombay 34 that, a declaration given under section 34 is binding only between the parties. It is a declaration in personam and not in rem. In a case between Dunia Lal Datta Vs. Nagendra Nath Datta & Another reported in AIR 1982 Calcutta 163 that, as per Section 35 of the Specific Relief Act, a decree of declaration will not be binding on Dunialal who was a stranger to the suit. In a case between Indubai Dagdu @ Dhondiram & Others Vs. Laxman Balwant Chougule (deceased) & Others reported in Civil Revision Application No.636 of 2023 (Bombay) at Para No.5 that, declaration of right in personam and that therefore, the same would not bind non- parties to suit. In a case between (O&M) Taqdir Jeet Singh @ Jagdir Jeet Vs. State of Haryana & Others reported in CR No.512 of 2006 (P & H) at Para No.12 that, the decree of declaration is a Judgment in personam and not a Judgment in rem. In a case between Bengal Ambuja Housing Development Limited vs. Pramila Sanfui and Ors reported in AIR 2015 (SC) 3729 that, either temporary or permanent injunction can be grant only against the parties to a suit but not against others. An injunction decree being a personal decree cannot be binding upon anybody else other than the parties to the suit. 17. So, in view of the principles of law enunciated in the ratio of the above decisions, when neither the father of the plaintiff i.e. Jogeswar Pati, nor the mother of the plaintiff i.e. R.S.A. No.386 of 2004 Page 14 of 21 Bhargabi Pati or the plaintiff i.e. Sib Narayan Pati were the parties in the suit vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 in respect of the suit properties filed by the defendant Nos.1 and 2, then, at this juncture, naturally, as per law, such Judgments and Decrees passed in T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 are not binding upon the plaintiff. As such, the plaintiff is not bound by the Judgments and Decrees passed in T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975. Because as per law, the Judgments and Decrees passed in the said suits have no binding effect upon the plaintiff, as the plaintiff was not a party in the said suits. 18. Now, the question arises, whether the suit of the plaintiff vide T.S. No.30 of 1981 was barred by limitation, as the same was filed much after 3 years of the decrees passed in the suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975. It has been specifically pleaded and proved on behalf of the plaintiff that, the plaintiff was totally ignorant about the filing of the suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 by the defendant Nos.1 and 2 in respect of R.S.A. No.386 of 2004 Page 15 of 21 the suit properties against others and he came to know about the same for the first time on dated 31.10.1975, when in the settlement camp, the defendant No.1 disclosed about the same. Then on dated 15.11.1975, the plaintiff filed the suit and thereafter, the plaint thereof was returned on 12.12.1980 on the ground of lack of pecuniary jurisdiction and then, on dated 14.05.1981 the same was presented again and after presentation, the same was registered as T.S. No.30 of 1981. When, undisputedly the preliminary decree as well as final decree in respect of the suit properties were passed in T.S. No.32 of 1940 in favour of the father of the plaintiff along with his 3 brothers and on the basis of such final decree, the delivery of possession of the suit properties was given in favour of the father of the plaintiff along his with 3 brothers in Execution Case No.36 of 1943 executing the final decree passed in T.S. No.32 of 1940 in respect of the suit properties against the predecessor of the defendant Nos.1 and 2 and when the preliminary decree and final decree in T.S. No.32 of 1940 as well as order regarding delivery of possession of the suit properties in favour of the father of the plaintiff and his R.S.A. No.386 of 2004 Page 16 of 21 three brothers passed in Execution Case No.36 of 1943 have not been set aside, and when the father of the plaintiff i.e. Jogeswar Pati, after him, the mother of the plaintiff i.e. Bhargabi Pati as well as the plaintiff Sib Narayan Pati has 1/4th share in the suit properties, then, in the suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 filed by the defendant Nos.1 and 2 in respect of the suit properties for declaration and permanent injunction, the members of plaintiff’s branch should have been arrayed as party, but the defendant Nos.1 and 2 have not done so. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decision: I. In a case between P.S. Radhakrishnan Vs. A. Indu reported in 2018 (4) Civ.C.C. (Ker) (DB) that, plaintiff cannot expect to receive the discretionary relief of declaration without impleading the person against whom the declaration is sought or the person, who will be effected by the declaration or person against whom, declaration is directed. 19. So, due to non-impleadment either to the father of the plaintiff, mother of the plaintiff as well as plaintiff in the suit vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 in respect of the suit properties filed by the defendant Nos.1 and R.S.A. No.386 of 2004 Page 17 of 21 2, it is held that, the defendant Nos.1 and 2 have managed to obtain the decrees in the suits vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 behind the back of the plaintiff and without his knowledge suppressing the material facts and practising fraud. Because, in spite of knowing that, as per the preliminary and final decree passed in T.S. No.32 of 1940, the plaintiff has 1/4th share in the suit properties, the plaintiff was not impleaded by them (defendant Nos.1 & 2) as parties in the suit vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975. Here in this matter at hand, when the Judgments and Decrees vide T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 in respect of the suit properties have been passed behind the back and without the knowledge of the plaintiff as well as without impleading plaintiff as a party in favour of the defendant Nos.1 and 2 in respect of the suit properties and when the plaintiff has prayed for setting aside the said decrees, then, at this juncture, it cannot at all be held that, the suit of the plaintiff vide T.S No.30 of 1981 was barred by limitation. Because as per law, a fraudulent decree is itself R.S.A. No.386 of 2004 Page 18 of 21 non-est in the eye of law and there is no limitation to challenge the same. That apart, limitation starts from the date of fraud becomes known to the plaintiff. 20. 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: I. In a case between Madan Lal & Another Vs. Rajesh Kumar (Dead) through LRs reported in 2006 (1) CCC (P & H) 230 & 2006 (I) Civ.L.T. 123 (P & H) that, suit for setting aside Judgment and Decree allegedly obtained by fraud and misrepresentation. Starting point of limitation would be the date of knowledge of alleged fraud. Decree was passed in 1988, but evidence to show that, plaintiff came to know about it in 1995 and suit was filed in 1995. Suit was rightly held to be in within time. (Para Nos.14 & 16) In a case between Sanotsh vs. Jagat Ram & Another reported in 2010 (1) CLR (SC) 425 (Para No.12) that, a fraud puts an end to everything. It is a settled position in law that, such decree is nothing, but a nullity. In a case between Subala Tarai & Diriba Swain vs. Collector, Puri and Others reported in 2019 (1) CLR 748 that, action initiated on discovery of fraud is not barred by limitation. Since, fraud is a continuing wrong, period of limitation would begin to run at every moment of time during which, such wrong continues. II. III. R.S.A. No.386 of 2004 Page 19 of 21 21. Here in this suit/appeal at hand, as per the discussions and observations made above, when it is held that, the plaintiff had filed the suit vide T.S. No.30 of 1981 praying for a declaration that, the Judgments and Decrees in T.S. Nos.17/71, 59/74,19/75 & S.C.C. No.7/3 of 1975 have been passed behind his back without impleading him as party by practising fraud knowing fully well that, he (plaintiff) had/has 1/4th interest in the suit properties, then, at this juncture, it cannot be held that, the suit vide T.S. No.30 of 1981 filed by the plaintiff is barred by limitation. Because, fraud is a continuous wrong and period of limitation begin to run at every moment. For which, there is no limitation to challenge the same. Therefore, it cannot be held that, the suit of the plaintiff is barred by limitation. 22. As per the discussions and observations made above, when it is held on being fully agreed with the findings and observations made by the Trial Court and First Appellate Court that, the suit of the plaintiff vide T.S. No.30 of 1981 was not barred by limitation, then, at this juncture, the question of interfering with the Judgments and Decrees passed by the R.S.A. No.386 of 2004 Page 20 of 21 Trial Court and First Appellate Court through this 2nd Appeal filed by the LRs of the defendant No.1 does not arise. 23. Therefore, there is no merit in the 2nd Appeal of the appellants (LRs of defendant No.1). The same must fail. 24. In result, the 2nd Appeal filed by the appellants (LRs of defendant No.1) is dismissed on contest, but without cost. 25. The Judgments and Decrees passed by the Trial Court as well as by the 1st Appellate Court in T.S. No.30 of 1981 & T.A. No.57 of 1997 respectively are confirmed.
Decision
26. Pending application(s), if any, stand(s) disposed of. 27. Interim order(s), if any, stand(s) vacated. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack 16 .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: 17-Apr-2025 17:21:03 R.S.A. No.386 of 2004 Page 21 of 21