The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR S.A.O No.11 of 2004 Duryodhan Sahu and others …. Appellants Mr. S. Mishra, Advocate -Versus- Home Department of Orissa represented by the Superintendent of Police, Bhadrak and others …. Respondents Mr. P.K. Ray, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING: 22.07.2025 DATE OF JUDGMENT:13.10.2025 1. Instant Appeal under Order 43 Rule1(u) of the Code of Civil Procedure, 1908 is preferred by the appellants challenging the impugned judgment in Title Appeal No.44 of 2003 of the learned Additional District Judge, Bhadrak, whereby, the judgment and decree in T.S. No.273 of 1990-I was set aside followed by a remand for disposal of the suit afresh and in accordance with law by impleading respondent No.1 as one of the defendants therein on the grounds inter alia that the same is untenable in law and therefore, liable to be set aside. 2. The schedule property is morefully described under Schedule-A of the plaint in T.S. No.273 of 1990-I. According to the appellants, the suit was instituted in the court of learned Sub-Judge, Bhadrak impleading respondent Nos.2 to 5 as Page 1 of 12
Legal Reasoning
defendants praying therein for a declaration that the entry made in the M.S. RoR in respect of ‘Ka’ schedule land to be incorrect and illegal and to effect partition by allotting property under ‘Kha’ schedule in their favour, failing which, to accomplish it by process of the Court deputing a the Civil Court Commissioner, for the said purpose. The suit in T.S.
Decision
No.273 of 1990-I was disposed of and decreed preliminarily on contest against the defendants with a direction to the plaintiffs and defendant No.2 therein to effect partition of the suit properties amicably with specific direction in respect of ‘Kha’ schedule property or with the assistance of the Court declaring the M.S. RoRs entry vide Annexure-10 to be erroneous and the order in Mutation Case No.1545 of 1990 as illegal and unenforceable. Against the judgment and decree therein dated 23rd August, 1999, respondent No.1 approached the learned court below with the appeal and it was disposed of by judgment dated 21st April, 2004 setting aside the judgment and decree in the suit and for its fresh disposal according to law impleading it as a defendant. As a result, the appellants filed the instant appeal challenging the decision of the learned court below in Title Appeal No. 44 of 2003 on the ground that the same is liable to be interfered with since delay was condoned and also the leave to prefer the appeal was granted ex parte. 3. Heard Mr. Mishra, learned counsel for the appellants and Mr. Ray, learned AGA for the respondents. 4. Mr. Mishra, learned counsel for the appellants submits that the learned court below would not have allowed the appeal with the remand order without having issued notice to the Page 2 of 12 appellants on limitation and before granting the leave in favour of respondent No.1. The further submission is that the State was duly represented in the suit, however, with a plea that respondent No.1 was not implead, learned court below could not have restored the same with such a remand, while disposing of the appeal. The contention of Mr. Mishra, learned counsel is that in the suit, the State was represented by the Collector, Bhadrak and it was defended and ultimately, the same was decreed preliminarily between the plaintiffs and defendant No.2 but ignoring the fact that evidence was received and discussed threadbare, allowed the appeal at the instance of respondent No.1 on the premise that it was not impleaded in the in the suit, wherein, the decree was obtained by fraud, a conclusion which is clearly erroneous and without any basis. In support of the argument advanced, Mr. Mishra, learned counsel relies on the followed decision, such as, E.V. Ranga Reddy Vrs. Union of India and others 2013 SCC Online AP 85; Kores (India) Limited Vrs. Bank of Maharashtra and others (2009) 17 SCC 674; Pathapati Subba Reddy (Died) by L.Rs & others Vrs. The Special Deputy Collector (LA) in SLP (C) No.31248 of 2018 decided on 8th April, 2024 and H. Anjanappa and others Vrs. A. Prabhakar and others in Civil Appeal Nos.1180-1181 of 2025 to contend that delay on limitation and granting leave to appeal by the learned court below without notice to the appellants with a remand is legally untenable. 5. On the contrary, Mr. Ray, learned AGA for the State vehemently opposed the plea of the appellants and contentions advanced with the submission that the suit land vested with the Page 3 of 12 Government under the Orissa Estate Abolition Act (shortly as ‘the OEA Act’) free from all encumbrances and recorded as Sairat land of the Government and it was put to annual auction for cultivation to generate revenue and such vesting had taken place on 7th September, 1953. The further submission is that the wife of the ex-intermediary, namely, Late Ramakrushna Bose applied for settlement of rent of different plots including the suit land in her favour under the OEA Act in R.F. Case No.33 of 1956-57 and therein, field enquiry report was called for and it revealed that the ex-intermediary was not in khas possession of the land but the Government after vesting of the same and only an area of Ac.0.44 decimal of the plot in question under Khata No.74 in the concerned Mouza was settled with his LRs, hence, a direction was issued to settle it only subject to realization of arrear rent and cess after the appeal period is over and in so far as, the claim in respect of other plots is concerned, it was rejected as the possession was found with the Government, hence, therefore, the claim of the ex-intermediary was allowed to the extent as above in respect of Plot No.1531 with an area of Ac.0.44 ‰ decimal situate in Khata No.74 in favour of his son, namely, Radhakanta Bose. Mr. Ray, learned AGA further submits that the suit land under Khata No.74 with a total area of Ac.2.45 decimal was transferred in 1960 and recorded in the name of Home Department for construction of Bhadrak Jail and since, then, it is being used and possessed by the jail and police staff of Bhadrak P.S. described as Schedule-B property in the plaint and subsequent to the above transfer and possession, M.S. RoR is published in 1988 and it was for Ac.2.42 decimal instead and Page 4 of 12 the Superintendent of Police, Balasore was in possession of the same and after bifurcation of the district, it is being in occupation of the Superintendent Police, Bhadrak and such possession is continuing till date. 6. It is alleged that the legal heirs of the ex-intermediary with the assistance of local Tahasil staff and by playing fraud upon the Court managed the order in R.F. Case No.572 of 1971 and thereafter, they sold the land by four separate sale deeds in favour of the appellants, however, the record continued to be the name of the Government in Home Department but such settlement was reviewed by the Member, Board of Revenue exercising powers under Section 38-B of the OEA Act in a suo moto proceeding and by order dated 25th May, 1983 set it aside observing that the settlement was allowed under the Lease Principle without following the rules and regulations and as a result, OJC No.2415 of 1983 was filed and disposed of on 5th April, 1990 with the order of the Board of Revenue being quashed, however, the suit land is in the name of the Home Department, Government of Odisha. 7. The plaintiffs filed mutation cases before the concerned Tahasildar and therein, for the first time, the Home Department was made a party and upon receiving notice, respondent No.1 could know about the claim of title by them on the basis of the sale deeds executed as against the sabik plots and since, it was held to be beyond his jurisdiction, such a request was not considered and at last, the suit in T.S. No.273 of 1990-I was instituted for partition against the ex-intermediary and correction of M.S. RoR by the State represented by the Page 5 of 12 Collector, Bhadrak as defendant No.1 and the son of the ex- intermediary as defendant No.2, wherein, by filing defence, question of maintainability was raised and challenging the cause of action with a plea that the same is barred by limitation and for the properties being recorded in the name of the Home Department, State Government, who has not been made a party therein and hence, hit by non-joinder of a necessary party and thus, liable to be dismissed. 8. Since, the suit was decreed in favour of the appellants, appeal was filed by respondent No.1 and leave to appeal was requested and the same was allowed with the limitation condoned and it was followed for a remand for fresh decision by learned Trial Court and according to Mr. Ray, learned AGA, the same is perfectly justified since respondent No.1 is the real owner and the judgment and decree therein is not binding to it. In support of the argument advanced, Mr. Ray, learned AGA relies on the following decision, such as, Smt. Jatan Kumar Golcha Vrs. M/s. Golcha Properties (Pvt.) Ltd. AIR 1971 SC 374; Khetrabasi Biswal Vrs. Ajaya Kumar Baral and others 2004 14 AIC 446 (SC); S.P. Chengal Varaya Naidu (Dead) by LRs Vrs. Jagannath (Dead) by LRs and others (1994) 1 SCC 1 with the plea that suit for partition is based on fraud, hence, the decree is a nullity and not binding to respondent No.1. Referring to Kamini Kanta Mishra and others Vrs. Sri Srinivas Kar and others 1990 (I) OLR 241, it is claimed that the subsequent settlement as per the OEA Act to be barred by res judicata in view of the order of rejection in R.F. Case No.33 of 1956-57 dated 25th Page 6 of 12 May, 1972, which was not challenged by the ex-intermediary or his LRs, hence, has become final. 9. To buttress the argument, Mr. Mishra, learned counsel for the appellants in the first place would submit that even though such delay in filing appeal has been condoned and it was not challenged by the appellants during the pendency of the appeal, it may be questioned on its disposal. In support of such contention, the decision of E.V. Ranga Reddy and Kores (India) Limited (supra) have been pressed into service. In E.V. Ranga Reddy (supra), the A.P. High Court reiterated the law that an order on an application for condonation of delay need not be challenged separately, inasmuch as, an appeal or revision, which is filed with an application to condone any such delay depends entirely upon the condonation of delay and even where the delay is condoned, the order passed on merit would become dependent thereby concluding that if a superior court finds that the delay ought not to have been condoned, the very pedestal on which the appeal or revision stands disappears and an order passed in an appeal would accordingly cease to have any independent existence. The decision in Kores (India) Limited (supra) is referred to therein, where the Apex Court held that a litigant is not bound to appeal against every interlocutory order and can wait until final order is passed and challenge all the orders leading to final order, however, with exception to the rules are as to the order of remand and appeal against final decree, where, preliminary decree attained finality. Page 7 of 12 10. The Court is inclined to hold that even though the order of delay condonation has been allowed by the learned Court below, while entertaining the appeal and though, the appellants did not challenge the same, it is open for them to question legality thereof before this Court. It is clarified that the above exception relates to an order of remand not challenged leading to the disposal of the suit by a decree cannot be challenged in an appeal, where the preliminary decree attained finality. In other words, with a remand directed, unless the same is challenged immediately, the suit disposed of with such a remand, correctness of the same cannot be challenged after a decree therein is confirmed by a final decree. In the case at hand, the order of remand has been challenged by the appellants and in so far as the delay condonation is concerned, it is against an interlocutory order and even though, the same was not challenged, may be questioned upon disposal of the appeal. Having said that, the Court is in agreement with the contention of Mr. Mishra, learned counsel for the appellants but the question is, whether, it was justified on the part of the learned Court below to condone such delay without notice. Admittedly, respondent No.1 was not a party to the suit as it was defended by respondent No.5. A leave of appeal was filed by respondent No.1 and considering the fact that it was not impleaded as one of the defendants despite an objection received from respondent No.5 and having a locus standi to challenge the decree in the suit, the learned Court below considered it to be proper to condone the delay, which had occasioned in preferring the appeal, even without the notice to the appellants. It is claimed that the appellants moved an Page 8 of 12 application challenging the condonation of delay and as to maintainability of the appeal but the learned Court below kept it pending for being considered at the time of final disposal. It is also claimed that the additional evidence was sought to be introduced by respondent No.1. But, respondent No.1’s plea was that it learnt about the decree after having received notice in the mutation proceeding and thereafter, filed the appeal and hence, was the delay. According to the Court, no serious wrong was committed by the learned court below in condoning the same, even though, it was allowed before issuance of notice to the appellants. The Court is also of the view that the learned Court below did not err in granting the leave to appeal in favour of respondent No.1, who was not impleaded as one of the defendants in spite of an objection from respondent No.5, all the more when, the suit property stands recorded in the name of the Home Department, Government of Odisha. 11. In course of hearing, Mr. Mishra, learned counsel for the appellants referred to the decision in H. Anjanappa (supra) to contend that the elementary conditions are to be satisfied, while granting leave to appeal. In the said case, the suit was for specific performance of contract and leave to appeal was granted in favour of pendente lite purchasers and it was challenged and therein, the Apex Court outlined the principles to be followed and summarized the same. In H. Anjanappa case, it is held that thefacts are to be borne in mind before considering grant of leave to appeal, which are as to the following, such as, (i) Sections 96 and 100 C.P.C. provide for preferring appeal from an original decree or decree in appeal respectively; (ii) the said provisions do not enumerate the Page 9 of 12 categories of persons, who can file an appeal; (iii) however, it is settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless it is shown to the Court that he falls within the category of an aggrieved person; (iv) it is only where a judgment and decree prejudicially affects a person, who is not a party to a proceeding, he can prefer an appeal with the leave of the Court; (v) a person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to impugned; (vi) the expression ‘person aggrieved’ does not include a person, who suffers from a psychological or an imaginary injury; (vii) it would be improper to grant leave to appeal to every person, who may in some remote or indirect way be prejudicially affected by a decree or judgment; and (viii) ordinarily, leave to appeal should be granted to persons, who, though, not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. Since, leave to appeal was granted in favour of the pendent lite purchasers despite an order of injunction against their vendor and for the fact that such purchasers had moved an application seeking impletion in the suit in terms of Order 1 Rule 10 CPC and the same was declined and such disposal and purchase of the suit property was in contravention of Section 52 of the Transfer of Property Act, the Apex Court held and concluded therein that under such circumstances, the permissions to file an appeal could not have been accorded. 12. In the suit herein, the respondent No.1 was never a defendant having not been impleaded. Even, the Court of first Page 10 of 12 instance declined to hold that the suit is not maintainable in absence of respondent No.1, even though, an objection was raised by respondent No.5 therein as defendant No.1. One of the issues were framed on maintainability of the suit but it was answered against defendant No.1 with a conclusion that the suit is maintainable, even when respondent No.1 was impleaded on the premise that there has been a notice to the State in terms of Section 80(1)(c) of the CPC. In the considered view of the Court, the learned Civil Judge (Senior Division), Bhadrak should have impleaded respondent No.1 as one of the defendants and ought not to have ignored the objection of respondent No.5. Nevertheless, the appeal was filed by respondent No.1. The suit property is recorded in the name of respondent No.1 having right, title and interest over the same and when the appellants instituted the suit seeking correction of the MS RoRs, it had the locus standi to prefer the appeal against the judgment and decree in the suit and rightly, therefore, the learned Court below can be said to have granted the leave to appeal. Since, the decree in the suit was not within the knowledge of respondent No.1 and it was of the year 1999 and though, the mutation proceeding was initiated some time before and therein, notice was received, the delay having been duly explained, the learned Court below, considering the same and the explanation offered towards such delay with the appeal being filed in 2003, did not commit any error in condoning the same and even after an objection received from the appellants later directing remand for a fresh decision with respect to the reliefs sought for in the suit as against the plea of respondent No.1 that the suit property was not settled with the family of Page 11 of 12 the ex-intermediary with the rejection order dated 25th May, 1972 in RFA Case No.33 of 1956-57, which is of course disputed by the appellants advancing a plea that it has been settled on Lease Principle and sold to them with delivery of possession and though the settlement in RFA Case No.577 of 1971 was set aside by the Member, Board of Revenue but reversed by this Court in OJC No.2415 of 1983. The Court is of the view that whether any such settlement vis-(cid:224)-vis the suit property in favour of the ex-intermediary succeeded by defendant No.2 and sold to the appellants and is a part and parcel of the subject matter in RFA Case No.33 of 1956-57 or otherwise or it has been duly settled with any such order in RFA Case No.572 of 1971 is a matter to be thrashed out in the suit with the remand having taken place. So the conclusion is that the learned Court below did not commit any illegality in granting leave to appeal in view of the decree in favour of the appellants with respect to the suit property recorded in the name of the Home Department, Government of Odisha. 13. Hence, it is ordered. 14. In the result, the appeal stands dismissed. (R.K. Pattanaik) Judge BalaramRojina Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 15-Oct-2025 19:24:21 Page 12 of 12