The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.383 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Babaji @ Bidyadhar Samal and others -versus- Ramesh Chandra Patra …. …. Appellants Respondent Appeared in this case:- For Appellants For Respondent : : Mr. S.P. Mishra, Sr. Advocate assisted by Mr. R.K. Agarwal, Advocate Mr. D.P. Mohanty, Advocate S.A. No.384 of 1997 …. Babaji @ Bidyadhar Samal and others -versus- Appellants Snehalata Patra and others …. Respondents Appeared in this case:- For Appellants For Respondents : : Mr. S.P. Mishra, Sr. Advocate assisted by Mr. R.K. Agarwal, Advocate Mr. D.P. Mohanty, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 05.03.2025 / date of judgment : 03.04.2025 Page 1 of 25 A.C. Behera, J. Since both the 2nd appeals have arisen out of an analogous judgment and decree dated 20.11.1997 and 29.11.1997 passed in T.A. No.17 of 1993 and T.A. No.81 of 1996 respectively, then, both the appeals have been taken up together analogously for their final disposal through this common judgment. 2. Both the 2nd appeals vide S.A. No.383 of 1997 and S.A. No.384 of 1997 have been preferred against the reversing judgments. 3. The appellants in the 2nd appeal No. S.A. No.383 of 1997 were the
Legal Reasoning
defendant Nos.1 to 3 before the trial court in the suit vide T.S. No.242 of 1990 and respondent Nos.1 to 3 before the 1st appellate court in the 1st appeal vide T.A. No.17 of 1993. The respondent in the 2nd appeal No.383 of 1997 was the sole plaintiff before the trial court in the suit vide T.S. No.242 of 1990 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.17 of 1993. 4. The appellants in the 2nd appeal No.384 of 1997 were the defendant Nos.1 to 3 before the trial court in the suit vide T.S. No.308 of 1989 and respondent Nos.1 to 3 before the 1st appellate court in the 1st appeal vide T.A. No.81 of 1996. Page 2 of 25 The respondent Nos.1 to 5 in the 2nd appeal No S.A. No.384 of 1997 were the plaintiffs before the trial court in the suit vide T.S. No.308 of 1989 and the appellants before the 1st appellate court in the 1st appeal vide T.A. No.81 of 1996. The respondent nos.6 and 7 in the 2nd appeal No.384 of 1997, i.e., Sunakar Patra and Nirmal Chandra Patra were the defendant nos.4 and 5 before the trial court in the suit vide T.S. No.308 of 1989 and respondent nos.4 and 5 before the 1st appellate court in the 1st appeal vide T.A. No.81 of 1996. 5. The suit vide T.S. No.308 of 1989 filed by the plaintiffs(respondent nos.1 to 5 in S.A. No.384 of 1997) against the defendants(appellants and respondent nos.6 and 7 in the 2nd appeal vide S.A. No.384 of 1997) was a suit for declaration. 6. The suit vide T.S. No.242 of 1990 filed by the sole plaintiff, i.e., Ramesh Chandra Patra (respondent in S.A. No.383 of 1997) against the defendants(appellants in S.A. No.383 of 1997) was a suit for permanent injunction simpliciter. 7. As per the case of the plaintiffs in the suit vide T.S. No.308 of 1989, the suit properties were under the Ex-intermediary Estate of the then, Ex-intermediary (Jamindar) Baishnab Charan Das. The said Ex- Page 3 of 25 intermediary Baishnab Charan Das inducted Banamali Patra(predecessor of the plaintiffs) as tenant of the suit properties. Accordingly, Banamali Patra was possessing the suit properties on payment of rent to the Ex- intermediary. 8. After abolition of Ex-intermediary system, the State was receiving rents of the suit properties from Banamali Patra. The said Banamali Patra died leaving behind the plaintiffs and defendant nos.4 and 5 as his successors. After the death of Banamali Patra, the suit properties devolved upon the plaintiffs and defendant nos.4 and 5. Accordingly, the plaintiffs and defendant nos.4 and 5 are the joint owners of the suit properties. 9. One of the co-villagers of the plaintiffs, i.e., father of the defendant nos.1 to 3, namely, Biswanath Samal developed relationship with Sunakar Patra(defendant no.4) and by influencing him, he(Biswanath Samal) obtained an illegal and void order under Section 36-A of the OLR Act in his favour in OLR Case No.1806 of 1976 impleading only Sunakar Patra(defendant no.4) as party in that OLR Case No.1806 of 1976 in respect of the suit properties. For which, on the strength of such illegal order in OLR Case No.1806 of 1976 in favour of Biswanath Samal(father of the defendant nos.1 to 3) behind the back of the plaintiffs, the sons of Biswanath Samal, i.e., defendant nos.1 to 3 created Page 4 of 25 disturbances in the possession of the plaintiffs on dated 18.08.1989 in the suit properties. So, the plaintiffs filed the suit vide T.S. No.308 of 1989 against the defendant nos.1 to 3 arraying Sunakar Patra and his son Nirmal Chandra Patra as defendant nos.4 and 5 praying for a declaration that, the order passed by the Revenue Officer in OLR Case No.1806 of 1976 on dated 23.10.1978 in respect of the suit properties in favour of Biswanath Samal as void, illegal, non-est in the eye of law and the same is not binding upon the plaintiffs, as the said order dated 23.10.1978 has been passed in OLR Case No.1806 of 1976 behind their back without following and applying the mandatory statutory provisions of law envisaged in the OLR Act. 10. The defendant nos.4 and 5, i.e., Sunakar Patra and his son Nirmal Chandra Patra were set ex parte in that suit vide T.S. No.308 of 1989, but, whereas the sons of Biswanath Samal, i.e., defendant nos.1 to 3 contested the same by filing their joint written statement taking their stands inter alia therein that, the suit of the plaintiff is not maintainable under law. According to them(defendant nos.1 to 3), when the decision in respect of the suit properties in favour of their father Biswanath Samal has already been made by the competent statutory authority i.e. by the Revenue Officer, Binjharpur in the District of Jajpur under Section 36-A of the OLR Act on dated 23.10.1978 in OLR Case No.1806 of 1976, Page 5 of 25 then, the suit of the plaintiff is barred under Section 67 of the OLR Act. As such, the suit of the plaintiffs before the Civil Court is not maintainable under law. For which, the plaintiffs have no cause of action for filing the suit vide T.S. No.308 of 1989 against them (defendant Nos.1 to 3). 11. The specific case/plea of the defendant Nos.1 to 3 in their written statement was that, their father Biswanath Samal was in possession over the suit properties as bhag tenant under the predecessors of the plaintiffs, i.e., Banamali Patra and after him under defendant no.4 Sunakar Patra, as Sunakar Patra was the ‘karta’ of the family of the plaintiffs and their father Biswanath Samal had filed OLR Case No.14 of 1974 under Sections 15 and 26(2) of the OLR Act against the defendant no.4 (Sunakar Patra) in respect of the suit properties and that OLR Case No.14 of 1974 was compromised between him and Sunakar Patra, wherein defendant no.4 (Sunakar Patra) admitted to their father Biswanath Samal as the bhag tenant of the suit properties. 12. Thereafter, their father Biswanath Samal filed OLR Case No.1806 of 1976 under Section 36-A of the OLR Act against Sunakar Patra (defendant No.4) for resumption of the suit properties and that OLR Case No.1806 of 1976 under Section 36-A was allowed in favour of their father Biswanath Samal, wherein their father was directed to pay Page 6 of 25 compensation of Rs.888/- to the defendant no.4(Sunakar Patra) in respect of the suit properties. Subsequently, an appeal vide OLR Appeal No.819 of 1978 was preferred against the final order of the said OLR Case No.1806 of 1976, but, that OLR Appeal No.819 of 1978 was dismissed by the A.D.M., Cuttack on 07.02.1980 and accordingly, their father Biswanath Samal was paying rent of the suit properties to the Government and after the death of their father Biswanath Samal, they(defendant nos.1 to 3) being his successors, they(defendant nos.1 to 3) are also paying rent of the suit properties to the Government being the owners of the suit properties and they had/have been possessing the same as the joint owners of the suit properties. For which, the suit of the plaintiffs is not maintainable under law. Therefore, the plaintiffs have no right, title, interest and possession over the suit properties. Because, they(defendant nos.1 to 3) are in possession over the suit properties being the owners of the same. For which, the suit of the plaintiffs is liable to be dismissed. 13. Basing upon the aforesaid pleadings and matters in controversies between the parties altogether five numbers of issues were framed by the trial court in the suit vide T.S. No.308 of 1989 and the said issues are:- I S S U E S i. Whether the suit is maintainable? Page 7 of 25 Whether the suit is barred by law of limitation? ii. iii. Whether the suit is properly valued? iv. Whether the order dated 23.10.1978 passed by the Revenue Officer, Binjharpur in OLR Case No.1806 of 1976 is void, illegal and not binding upon the plaintiffs and defendant no.5? To what relief(s), if any, they (plaintiffs) are entitled? v. 14. In order to substantiate the aforesaid relief sought for by the plaintiffs in their suit vide T.S. No.308 of 1989 against the defendants, they (plaintiffs) examined two witnesses from their side including plaintiff no.4, i.e., Ramesh Chandra Patra as P.W.1 and relied upon the documents vide Exts.1 to 7. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant nos.1 to 3 examined four numbers of witnesses from their side including defendant no.1 as D.W.1 and relied upon the documents vide Exts.A to N. 15. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues against the plaintiffs and in favour of the defendant nos.1 to 4. 16. Basing upon the findings and observations made by the trial court in the issues against the plaintiffs and in favour of the defendant nos.1 to 4, the trial court dismissed the suit of the plaintiffs vide T.S. No.308 of 1989 on contest against the defendant nos.1 to 3 and ex parte against the Page 8 of 25 defendant nos.4 and 5, but, without cost as per its judgment and decree dated 12.04.1996 and 23.04.1996 respectively assigning the reasons that, the plaintiffs and the defendant nos.4 and 5 are the members of one family and the defendant no.4(Sunakar Patra) is the eldest member of their family, for which, the acts done by the defendant no.4(Sunakar Patra) admitting the bhag tenancy of the father of the defendant nos.1 to 3 in the suit properties as ‘karta’ on behalf of the plaintiffs in OLR Case No.1806 of 1976 is binding upon him (Sunakar Patra) as well as plaintiffs and defendant no.5. Therefore, the civil court has got no jurisdiction to declare the order of Revenue Officer passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act as illegal and void. 17. T.S. No.242 of 1990 was filed by Ramesh Chandra Patra (plaintiff no.4 in the suit vide T.S. No.308 of 1989) being the sole plaintiff against the defendant nos.1 to 3 of the suit vide T.S. No.308 of 1989, i.e., against the three sons of Biswanath Samal praying for permanent injunction simpliciter against them in respect of the self-same suit properties of T.S. No.308 of 1989. 18. According to the plaintiff Ramesh Chandra Patra in the suit vide T.S. No.242 of 1990, the suit properties are his ancestral properties. His grand-father Banamali Patra had acquired the suit properties on the strength a ‘Hatapatta’ from the ex-landlord for agricultural purposes and Page 9 of 25 accordingly, after abolition of the Ex-intermediary estate, he(plaintiff) along with his other co-sharers being the successors of Banamali Patra, they are possessing the suit properties being the owners of the same. The father of the defendants, i.e., Biswanath Samal illegally obtained ‘patta’ (RoR) as per Section 36-A of the OLR Act projecting him falsely as a bhag tenant of the suit properties behind their back. When, on the strength of such illegal order from the OLR authorities under Section 36- A of the OLR Act, the defendants being the three sons of Biswanath Samal created disturbances in the possession of the plaintiff and his co- sharers in the suit properties, then, he (plaintiff) along with his co-sharers filed suit vide T.S. No.308 of 1989 against them along with their two co- shares, i.e., Sunakar Patra and Nirmal Chandra Patra in the court of Munsif, Jajpur praying for a declaration that, the order passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act in favour of the father of the defendants, i.e., Biswanath Samal in respect of the suit properties as void and illegal, as the said order has been obtained by the father of the defendants without complying the mandatory statutory provisions of the OLR Act and the rules thereof. When, after filing of that suit vide T.S. No.308 of 1989, the defendants created disturbances in the possession of the plaintiffs and his co-sharers in the suit properties, then, he(plaintiff) filed the suit vide T.S. Page 10 of 25 No.242 of 1990 against the defendants praying for restraining them (defendants) permanently from entering into the suit properties and from creating any sort of disturbance in the possession of the plaintiff and his co-sharers in the suit properties. The defendants challenged the suit vide T.S. No.242 of 1990 of the plaintiff by filing their joint written statement denying the averments made by the plaintiff in the his plaint taking their stands that, the suit of the plaintiff vide T.S. No.242 of 1990 is not maintainable under law being hit and barred under Section 67 of the OLR Act. The specific case of the defendants was that, they (defendants) are the owners and in possession over the suit properties on the basis of the order passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act in their favour. For which, the civil court is not competent under law to adjudicate the matter and as such, the civil court has no power to injunct them(defendants) from coming over the suit properties, as they (defendants) are in possession over the same. So, the suit of the plaintiff is liable to be dismissed. 19. Basing upon the aforesaid pleadings and matters in controversies between the parties in T.S. No.242 of 1990, altogether four numbers of issues were framed by the trial court in that suit vide T.S. No.242 of 1990 and the said issues are:- Page 11 of 25 I S S U E S i. ii. Is the suit as laid maintainable? Is there any cause of action to bring this suit? iii. Is the plaintiff entitled for any injunction order against the defendants? iv. To what reliefs or relief, if any, the parties are entitled to? 20. In order to substantiate the aforesaid relief, i.e., permanent injunction against the defendants sought for by the plaintiff, he(plaintiff) examined five numbers of witnesses on his behalf including him as P.W.1 and relied upon the documents vide Exts.1 to 6/a. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined four witnesses from their side including defendant no.1 as D.W.1 and exhibited several documents on their behalf vide Exts.A to Q. 21. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue nos.3 and 4 in the suit vide T.S. No.242 of 1990 against the plaintiff and in favour of the defendants. 22. Basing upon the findings and observations made by the trial court in the issue nos.3 and 4 against the plaintiff and in favour of the defendants, the trial court dismissed the suit of the plaintiff vide T.S. No.242 of 1990 on contest against the defendants as per its judgment and Page 12 of 25 decree dated 26.03.1993 and 16.04.1993 respectively assigning the reasons that, the defendants are in possession over the suit properties and their possession over the suit properties finds support from the tenancy ledger prepared by the Tahasildar, Binjharpur as per order dated 18.02.1991. When, they (defendants) are paying rent of the suit properties and they(defendants) are in possession over the suit properties, then, the plaintiff is not entitled to get the decree, i.e., permanent injunction in respect of the suit properties against the defendants. 23. On being dissatisfied with the aforesaid judgments and decrees passed in both the suits vide T.S. No.308 of 1989 and T.S. No.242 of 1990 respectively against the plaintiffs and in favour of the defendant nos.1 to 3 (sons of Biswanath Samal), the plaintiffs in both the suits challenged the said judgments and decrees of the dismissal of their both suits vide T.S. No.242 of 1990 and T.S. No.308 of 1989 preferring two separate appeals vide T.A. No.17 of 1993 and T.A. No.81 of 1996 respectively being the appellants against the defendants arraying them(defendants) as respondents. 24. As both the appeals vide T.A. No.17 of 1993 and T.A. No.81 of 1996 had arisen out of the dispute from the same suit properties and between the same parties, then, the 1st appellate court after hearing from
Decision
both the sides disposed of both the appeals vide T.A. No.17 of 1993 and Page 13 of 25 T.A. No.81 of 1996 through an analogous and common judgment and allowed both the 1st appeals of the appellants and set aside the judgments and decrees passed by the trial court in both the suits vide T.S. No.308 of 1989 and T.S. No.242 of 1990 respectively as per its judgment and decree dated 20.11.1997 and 29.11.1997 respectively and declared that, the order dated 23.10.1978 passed by the Revenue Officer, Binjharpur in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act in favour of Biswanath Samal(father of the defendant nos.1 to 3) is illegal and invalid, assigning the reasons that, the said order in OLR Case No.1806 of 1976 was passed by the Revenue Officer, Binjharpur in the District of Jajpur in OLR Case No.1806 of 1976 without complying the statutory mandatory provisions of the OLR Act and Rules thereof. For which, the ‘patta’ (RoR) issued by the Revenue Officer, in favour of Biswanath Samal(father of the defendant nos.1 to 3) in respect of the suit properties on the basis of an illegal order passed in OLR Case No.1806 of 1976 is unsettled and also passed the decree, i.e., permanent injunction in T.S. No.242 of 1990 against the defendant nos.1 to 3 injuncting them (defendant Nos.1 to 3) permanently from creating disturbance in the possession of the plaintiffs in the suit properties, as the title and possession claimed by the defendant nos.1 to 3 over the suit properties on Page 14 of 25 the basis of the ‘patta’(RoR) issued in their favour in OLR Case No.1806 of 1976 is unsettled. 25. On being aggrieved with the aforesaid analogous judgments and decrees passed by the 1st appellate court in T.A. No.17 of 1993 and T.A. No.81 of 1996 on dated 20.11.1997 and 29.11.1997 respectively in favour of the plaintiffs and against the defendant nos.1 to 3, they (defendant nos.1 to 3) challenged the same by preferring these two 2nd appeals vide S.A. No.383 of 1997 and S.A. No.384 of 1997 respectively being the appellants against the defendants arraying them as respondents. Second Appeal No.384 of 1997 has been preferred against the judgment and decree passed in T.A. No.81 of 1996 arising out of T.S. No.308 of 1989. Second Appeal No.383 of 1997 has been preferred against the judgment and decree passed in T.A. No.17 of 1993 arising out of T.S. No.242 of 1990. 26. Both the 2nd appeals have been admitted on formulation of the following substantial questions of law, i.e.,:- (a) Whether the suit filed by the plaintiffs are maintainable in the eye of law in view of Section 67 of the OLR Act? (b) Whether the learned lower appellate court is justified in holding that, the suits are maintainable, when order passed by Page 15 of 25 the Tahasildar in OLR Case No.1806 of 1976 under Section 36- A of the OLR Act was confirmed in OLR Appeal No.819 of 1978, where the validity and otherwise order passed by the Tahasildar was tested? (c) Whether the learned lower appellate court is justified to hold that, there has been procedural irregularity inasmuch as violation of the fundamental principles of judicial procedure, when the entire case record relating to the OLR case was not before the appellate court solely as per the decision reported in AIR 1997 S.C. 3082? 27. I have already heard from the learned counsels of both the sides. 28. When, all the above three formulated substantial questions of law are inter-linked having ample nexus with each other, as, the same are related to same and one point, i.e., whether the civil court has power, jurisdiction or authority under law to declare the order passed by the OLR authority in OLR Case No.1806 of 1976 as illegal/invalid, then, all the three formulated substantial questions of law are taken up together analogously for their discussions hereunder :- 29. 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 Bharat Jena and others vrs. Narayan Jena and others : reported in 2014(Suppl-II) OLR-132 that, even if, a statute bars the jurisdiction of the Civil Court, any order passed under the provisions of such statute 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. Page 16 of 25 In a case between Jagannath @ Jagamohan Dharua and (ii) others vrs. Prithwiraj Singh Dharua and others : reported in 2006(I) CLR-182 that, the Civil Courts have jurisdiction to examine the case when the statutory Tribunal has not complied with the provisions of the Act or has not acted inconformity with the fundamental principles of judicial procedure or the order is unfair, capricious or arbitrary. But, it is, however, to be noted that, even though Civil Court would have jurisdiction in the above noted situation to interfere with the order of the statutory Tribunal, yet the Civil Court cannot substitute its own decision for that of the statutory Tribunal, but, would simply give a direction to the statutory Tribunal to dispose of the case in accordance with law. In other words, even if, Tribunal decides the facts wrongly while exercising its legal jurisdiction, Civil Court cannot interfere with the findings of the Tribunal.(Para-7) In a case between Smt. Champabati Devi vrs. Duryodhan (iii) Swain(dead) and after him Ashok Kumar Swain and others : reported in 102(2006) CLT-279 that, 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 the Court of general jurisdiction can assume jurisdiction to decide the legality of the order of the Tribunal.(Para-13) In a case between Vankamamidi Venkata Subha Rao vrs. (iv) Chatlapalli Seetharamaratna Ranga-nayakamma : reported in AIR 1997 S.C.-3082 that, where the provisions of the particular Act have not been complied with or the statutory Tribunal like the Tribunals constituted under the land reforms laws has not acted in conformity with the fundamental principles of judicial procedure, the civil court gets jurisdiction to entertain the suit, if it is found that, the provisions of the statute having not been complied with or the statutory tribunals have not acted the fundamental principles of judicial procedure. inconformity with In a case between Judhisir Subudhi vrs. Balaji Financial (v) Fund and another : reported in 1987(I) OLR-589 and Judhisir Subudhi vrs. Balaji Financial Fund and another : reported in 64(1987) CLT-251 that, The 1st appellate court is invested with all the powers of the trial court as per Section 107 of the C.P.C., 1908. (Para-4) 30. Here, in this matter at hand, the 1st appellate court after appreciating the pleadings as well as oral and documentary evidence of the parties held that, there is no material in the record to establish about Page 17 of 25 the compliance of all the mandatory statutory provisions of law for passing the order in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act by the Revenue Officer, Binjharpur in the District of Jajpur in respect of the suit properties in favour of the father of the defendant nos.1 to 3, i.e., Biswanath Samal. 31. In fact, there is no material in the record to show that, Sunakar Patra(defendant no.4, in whose presence, order in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act was passed) was the ‘karta’ of the family of the plaintiffs and he was looking after the case on behalf of the plaintiffs. 32. Likewise, there is also no material in the record to show that, the matter regarding the filing of the OLR Case No.1806 of 1976 by the father of the defendants, i.e., Biswanath Samal in respect of the suit properties was brought to the knowledge/notice of the plaintiffs. 33. There is also no material in the record to show about any consultation with the village committee by the Revenue Officer, Binjharpur in the District of Jajpur before passing order in OLR Case No.1806 of 1976 in favour of the father of the defendants, i.e., Biswanath Samal under Section 36-A of the OLR Act in respect of the suit properties. Page 18 of 25 34. So, pointing out the above defects and lacunas in the OLR Case No.1806 of 1976, the 1st appellate court held that, the order has been passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act by the Revenue Officer, Binjharpur in the District of Jajpur in respect of the suit properties on dated 23.10.1978 in favour of the father of the defendants(Biswanath Samal) without complying the mandatory statutory provisions of the OLR Act and Rules thereof. Therefore, on the ground of non-compliance of the mandatory statutory provisions of the OLR Act and Rules thereof by the Revenue Officer, Binjharpur in the District of Jajpur for passing the order in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act, the learned 1st appellate court set aside the judgments and decrees of the trial court passed in T.S. No.308 of 1989 and T.S. No.242 of 1990 and declared that, the order dated 23.10.1978 passed by the Revenue Officer in OLR Case No.1806 of 1976 in respect of the suit properties in favour of the father of the defendants, i.e., Biswanath Samal is illegal, invalid and unsettled the ‘patta’ (RoR) of the suit properties, which was issued in his favour on the basis of the order passed in OLR Case No.1806 of 1976. 35. It is the settled propositions of law that, 1st appeal is always treated as a continuation of civil court. Page 19 of 25 Virtually, 1st appeal is a rehearing of civil suit and whole case is open for reconsideration at the stage of 1st appeal, because, 1st appeal is the continuation of the suit. 36. The scope, power and jurisdiction of interference of the 2nd appellate court like this Court with the findings and observations of the 1st appellate court has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions :- (i) In a case between Mahaveer and others vrs. Omprakash : reported in 2023(3) Civil Court Cases-653(Rajasthan)— CPC, 1908—Section 100—Finding of fact recorded by the 1st appellate court after appreciation of evidence not to be interfered with such findings in the 2nd appeal. (ii) In a case between Ramathal vrs. Maruthathal and others: reported in AIR 2018 S.C.-340 that, High Court cannot interfered in the 2nd appeal on the question of act unless and until there is absolute perversity. (iii) In a case between Gurunam Singh(dead) by Legal Representatives and others vrs. Lehna Singh(dead) by Legal Representatives : reported in (2019) 7 SCC-641—The High Court cannot substitute its own opinion for that of the 1st appellate court, unless it finds that the conclusions drawn by the 1st appellate court were erroneous being: (i) contrary to the mandatory provisions of the applicable law; or (ii) contrary to the law as pronounced by this Court; or (iii) based on inadmissible evidence or no evidence. (iv) In a case between Jaichand(dead) through L.Rs. and others vrs. Sahnulal and another : reported in 2024 (4) CCC-418(S.C.) that, High Court cannot interfere with findings of fact arrived at by 1st appellate, which is final court of facts, except in such cases, where such findings were erroneously being contrary to mandatory provisions of law, or its settled position on the basis of pronouncement made by Apex Court or based upon inadmissible evidence or without evidence.(Paras-28 and 29) Page 20 of 25 37. The above findings on facts arrived by the 1st appellate court after appreciating the pleadings as well as oral and documental evidence of the parties that, the Revenue Officer, Binjharpur in the District of Jajpur has not complied all the mandatory statutory provisions of the OLR Act and Rules thereof for passing the order in OLR Case No.1806 of 1976 on dated 23.10.1978 under Section 36-A of the OLR Act in respect of the suit properties in favour of the father of the defendant nos.1 to 3, i.e., Biswanath Samal are not unreasonable in any manner, because, the above findings on facts made by the 1st appellate court finds support from the materials available in the record. For which, by applying the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of aforesaid decisions, I find no justification for making interference with the above finding on facts arrived at by the 1st appellate court through this 2nd appeal filed by the defendant nos.1 to 3. 38. After declaring the order dated 23.10.1978 passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act as illegal and invalid on the ground of passing of the same without complying the mandatory statutory provisions of the OLR Act and Rules thereof, the 1st appellate court decreed the suit vide T.S. No.308 of 1989 of the plaintiffs in full without remitting back the matter vide OLR Case No.1806 of 1976 to the Revenue Officer, Binjharpur in the District of Jajpur to dispose of Page 21 of 25 the said OLR Case No.1806 of 1976 in accordance with law, though as per law, it was the duty of the 1st appellate court to remit back the said OLR Case No.1806 of 1976 to the Revenue Officer, Binjharpur in the District of Jajpur for its fresh disposal in accordance with law as per the propositions of law settled in the ratio of the decision reported in 2006(I) CLR-182 : Jagannath alias Jagamohan Dharua and others vrs. Prithwiraj Singh Dharua and others(at Para-7) 39. Likewise, the judgment and decree passed by the 1st appellate court in T.A. No.17 of 1993 arising out of the judgment and decree passed in T.S. No.242 of 1990 injuncting the defendants permanently on the basis of the declaration of the order dated 23.10.1978 passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act as illegal/invalid cannot be sustainable under law. 40. Even though, the order dated 23.10.1978 passed in OLR Case No.1806 of 1976 (on the basis of which, ‘patta’ of the suit properties was issued in favour of the defendants) has been declared as invalid / illegal, still then, when as per the aforesaid observations, the matter vide OLR Case No.1806 of 1976 has been remitted back to the Revenue Officer, Binjharpur in the District of Jajpur for its decision afresh as per law after complying the mandatory provisions of the OLR Act and Rules thereof after giving opportunity of being heard to the parties and their successors, Page 22 of 25 if any, then at this juncture, till the final decision of the OLR Case No.1806 of 1976 by the Revenue Officer, Binjharpur in the District of Jajpur and till the lawful eviction of the defendant Nos.1 to 3 from the suit properties, they(defendant Nos.1 to 3) cannot be injuncted, because, the possession of the suit properties have not been recovered from them (defendant Nos.1 to 3, those are the sons of Biswanath Samal), as their possession over the suit properties prima facie proves on the basis of ‘patta’, which has been ordered to be unsettled. 41. As per the discussions and observations made above, the 2nd appeal vide S.A. No.384 of 1997 arising out of T.A. No.81 of 1996 in connection with T.S. No.308 of 1989 is to be allowed in part, whereas the 2nd appeal vide S.A. No.383 of 1997 arising out of T.A. No.17 of 1993 in connection with T.S. No.242 of 1990 is to be allowed in full. 42. In result, the 2nd appeal No.384 of 1997 filed by the appellants(defendant nos.1 to 3) is allowed in part on contest against the respondents, but, without cost. The judgment and decree dated 20.11.1997 and 29.11.1997 respectively passed in T.A. No.81 of 1996 and T.S. No.308 of 1989 are set aside in part on contest. Page 23 of 25 The suit be and the same filed by the plaintiffs vide T.S. No.308 of 1989 is decreed in part on contest against the defendant nos.1 to 3. The order dated 23.10.1978 passed in OLR Case No.1806 of 1976 under Section 36-A of the OLR Act in respect of the suit properties in favour of the father of the defendant nos.1 to 3, i.e., Biswanath Samal is declared as illegal and invalid. The OLR Case No.1806 of 1976 under Section 36-A of the OLR Act is remitted back to the Revenue Officer, Binjharpur in the District of Jajpur for its decision afresh as per law after complying the mandatory statutory provisions of the OLR Act and Rules thereof after giving opportunity of being heard to the parties thereof including the parties of the 2nd appeal No.384 of 1997 as well as their successors, if any, within a period of six months from the date of filing of the certified copy of this judgment by any of the parties before the Revenue Officer, Binjharpur in the District of Jajpur. The 2nd appeal No.383 of 1997 filed by the appellants(defendants) is allowed in full on contest against the respondents, but without cost. The judgment and decree passed in T.A. No.17 of 1993 is set aside. Page 24 of 25 The suit be end the same vide T.S. No.242 of 1990 filed by the plaintiff Ramesh Chandra Patra against the defendant nos.1 to 3 is dismissed on contest, but, without cost. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 3rd of April, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 03-Apr-2025 16:18:27 Page 25 of 25