The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.274 OF 2012 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailed the judgment dated 21.07.2012 passed by the learned IInd Additional District Judge, Puri in Title Appeal No.17/25 of 2003/1992 setting asidethe judgment and decree dated 14.02.1992 and 29.02.1992 respectively passed by the learned Additional Sub-Judge, Puriin Title Suit No.23/39 of 1988/93-I. ---- Akhaya Kumar Kar & Others ::: Appellants. -versus- Prasanna Kumar Mohapatra & Others ::: Respondents. Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================ :::: M/s. Ramaprasad Mohapatra, D. Mohapatra, S. Parida, Advocates. For Appellants For Respondents :::: M/s. Pradipta Ku. Mohanty, Sr. Advocate. D.N. Mohapatra, J. Mohanty, P.K. Nayak, S.N. Dash, Advocates, (Resp. No.1 to 4). CORAM: MR. JUSTICE D.DASH DATE OF HEARING:21.02.2023 :: DATE OF JUDGMENT::29.03.2023 D.Dash, J. The Appellantsby filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned 2nd Additional District Judge, Puri in Title Appeal No.17/25 of 2003/1992. They having filed the suit i.e. TS No.23/39 of 1988/93-I as the Plaintiffs arraigning the Page 1 of 13 // 2 // Respondents as the Defendants for declaration of their title over the suit tank and for permanent injunction, learned Additional Sub-Judge, Puri
Legal Reasoning
had decreed the suit. The Respondents being the aggrieved Defendants having challenged the said judgment and decree passed by the learned Trial Court in an Appeal filed by them under Section-96 of the Code have been successful in non-suiting these Appellants (Plaintiffs). 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiffs case is that one Udaynath Mohapatra was the owner of the suit tank. In the year, 1917, he sold a portion that is Ac.0.73 decimals to one Basudev Das, who is the predecessor-in-interest of the Defendant Nos. 5 to 10. It is stated that the said sale although was made in pen and paper; it was a nominal one and delivery of possession of that sold portion of the tank had not been given. Udaynath died leaving behind his minor son, Kanduri with wife Sunamani in the year 1931. AnantaMohapatra who is the father of Udaynath and grandfather of Kanduri sold Ac.2.13 decimals of land by registered sale-deed, Ext.5. It is stated that Ananta had sold the same as the defacto guardian of Kanduri, who was then a minor. Brundaban possessed entire tank measuring Ac.2.78 decimals and died leaving behind his widow, Ratnamani. In the year 1968Ratnamani sold the suit tank covering an Page 2 of 13 // 3 // area Ac.2.78 decimals to one Sachidananda Das Goswani by registered sale-deed, Ext.9 and delivered possession. Sachidananda Das Goswami possessed and enjoyed the suit tank and then sold the same to the villagers in the year 1979 by registered sale-deed, Ext.6 and delivered possession. It is stated that Kanduri after attaining majority had sold Ac.0.79 decimals to the father of Defendant No.1, Krushna Chandra Patra by registered sale-deed, Ext.G. That Defendant No.1 then sold the tank to Defendant No.12. It is further stated that during the Survey Settlement Operation in the year, 1976, the suit tank was wrongly recorded in the name of KanduriMohapatra and father of Krushna Chandra Mohapatra i.e. Defendant No.1 jointly. 4. The Defendant Nos. 2 to 4 and 12 who are the legal heirs of KanduriMohapatra contested the suit. It is stated that Kanduri is the absolute owner of the property after death of the father, Udaynath. In the year, 1931, Kanduri was a minor and his grandfather was incompetent to act as his guardian. So, the sale made by Ananta under Ext.5 was not binding on Kanduri.Said sale was also not for legal necessity. It is stated that after death of Kanduri, villagers made attempt to grab the suit tank by manufacturing documents. Villagers had taken their signatures forcibly on blank papers and utilized the same as the written statement in a previously instituted suit i.e. O.S. No.37 of 1979, which was subsequently withdrawn and the present suit has been filed. Page 3 of 13 // 4 // 5. The Trial Court on the above rival pleadings framed as many as twelve (12) issues. Answering crucial issues i.e. issue nos. 10 and 11, upon examination of evidence and their evaluation, the answer has been returned in favour of the Plaintiffs that they have acquired title in respect to the entire tank. The Trial Court has also disbelieved the case of the Defendants that their signatures had ever been taken on blank papers. Having said as above, the Trial Court decreed the suit. 6. The Defendants being aggrieved by the said judgment and decree passed by the Trial Court, carried First Appeal. During pendency of this Appeal in view of the publication of the notification under Section- 3(1) of the Orissa Consolidation of Holding & Prevention of Fragmentation of Land Act, 1972 (for short, ‘the OCH&PFL Act)’, as the suit area came within the consolidation operation as per the notification, an application was filed by those Defendants under Section-4(4) of the said Act seeking an order of abatement of the Appeal filed by them. The Appellate Court rejected the said application by order dated 01.02.2000.The Defendants who are the Appellants in the First Appeal instead of accepting that order passed by the Trial Court and further pursuing the Appeal for its disposal on merit;challenged/questioned the said order by carrying Civil Revision before this Court. This Court having then dismissed the same finding no legality or infirmity in the said order of the Trial Court, the Appeal was taken up by the First Page 4 of 13 // 5 // Appellate Court for disposal on merit. The First Appellate Court had ultimately concluded that the suit has to fail. 7. The Appeal has been admitted by order dated 16.08.2012. The substantial questions of law standing to be answered in this Appeal are:- “1. Whether alienation of the suit property in the year 1931, as per Ext.5 by Ananta as defacto guardian of Kanduri in favour of predecessor-in-interest of the Plaintiffs for legal necessity and benefit of minor is binding on Defendant Nos.2,3 and 4, who are the legal heirs of Kanduri in view of Article-538 of Mullah Hindu Law? 2. Whether the learned lower Appellate Court has committed any error apparent on the face of record while considering Ext.1, i.e. the written statement in O.S. No.37/1979 filed by the Defendant No.2 and other admitting the title of the Plaintiffs, coming to the conclusion that even if accepted as admission then also the same having been proved to be wrong and to have been made under duress cannot bind to Defendant Nos.2 to 4 even if no evidence have been adduced by the Defendant Nos.2 to 4 to that effect? 3. Whether the alienation of the suit property in the year 1931 as per Ext.5 by Ananta as defacto guardian of Kanduri in favourof predecessor-in-interest of Plaintiffs is voidable under Section.30 of Guardians and Wards Act, 1980 and whether Kanduri is liable to challenge the same after attending majority or not?” Page 5 of 13 // 6 // Subsequently, on 05.08.2015 in course of hearing, this Court has found thatbefore proceeding to answer those earlier framedthe following two substantial questions are to be answered and those are:- “1) Whether the lower Appellate Court has committed an error of law declaring Ext.5 as a void document when in an earlier proceeding in course of the Appeal between the parties it has been held that the same is voidable which has been confirmed by this Hon’ble Court in Civil Revision
Decision
No.69 of 2000 disposed of on 22.08.2003? 2) Whether the principle of resjudicata is applicable in a subsequent stage of the same proceeding in view of an order made in course of the proceeding and if that can be said to have attained finality?” 8. Learned Counsel for the Appellants submitted that the above two substantial questions which have been framed later in fact are required to answer first. He submitted that once this Court by order dated 22.08.2003 in Civil Revision No.69 of 2000 has confirmed the order passed by the First Appellate Court in saying that the Appeal would not abate under Section-4(4) of the OCH&PFL Act, holding thereby,that the document under challenged i.e. Ext.5, registered sale-deed is a voidable document,the First Appellate Court has exceeded its jurisdiction while adjudicating the Appeal by giving a good bye to it in arriving at a conclusion that Ext.5, the impugned registered sale-deed is void abinitio. According to him, the First Appellate Court ought not to have Page 6 of 13 // 7 // entered into that arena at all. He submitted that the finding finally returned in the Civil Revision would operate as resjudicata on the question that whether the document is void or voidable. He further submitted that the document in question(Ext.5) having already been held as voidable; and that transaction reflected in Ext.5 having not been challenged by Kanduri within a period of three years of attaining his majority, the validity of the sale-deed is no more open to challenge. 9. Learned Counsel for the Respondents refuting the above submission contended that the conclusion of the High Court while dismissing the Civil Revision and holding that the First Appeal would not abate in view of the consolidation operation should not be taken to be conclusive on the question that the document, Ext.5 is voidable. According to him, the dismissal of the Revision would mean that the First Appellate Court would decide afresh as to whether the document is void or voidable which exercise the Appellate Court has undertaken and the conclusion arrived according to him, is wholly legal and thus sustainable. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement and have perused the evidence, both oral and documentary. Page 7 of 13 // 8 // 11. The Plaintiffs having projected the registered sale-deed, Ext.5, executed by AnantaMohapatra, the grandfather of Kanduri who executed the deed as the guardian of Kandurion the death of his father, Udaynath as the foundation of their whole claim; the same is under challenge from the side of the Defendants. When the Plaintiffs claim that AnantaMohapatra being the defacto guardian of minor,Kanduri had sold the property of the minor by executing the registered sale-deed representing the minor as his guardian, the Defendants assert that sale- deed is be void abinitio. 12. It is the settled position of law that the Consolidation Authority have no jurisdiction to decide the dispute as to the right, title and interest over the property which stand upon or based on a transaction which is voidable.It can only decide such dispute relating to theright, title and interest of the property concern with a transaction which is void abinitio. When the Consolidation notification was published and this suit property fell within the area covered under the notification as within the consolidation operation;the Defendants who were none other than the Appellants in the First Appeal then being under the sufferance of the judgment and decree passed by the Courts below, had filed an application pressing for abatement of the Appeal under Section-4(4) of the OCH&PFL Act. In other words, these Defendants had then asserted that the sale-deed, Ext.5 being void, asthe Consolidation Authority had Page 8 of 13 // 9 // the jurisdiction to decide the dispute, the Appeal filed by them cannot proceed to be disposed of on merit and the dispute thus be decided by the Consolidation Authorities. That was however objected by the Plaintiffs who were the Respondents in that First Appeal contending that the sale-deed, Ext.5 is not void but voidable and hence, the First Appeal must proceed for its logical culmination. 13. The First Appellate Court having taken the view that the transaction is voidable and not void, had said that the Appeal would not abate and should be decided on merit.That conclusion on being challenged by the Defendants in carrying a revision under Section-115 of the Code has received the seal of approval. The Revisional Court has also taken the view that the transaction is voidable and therefore, the First Appeal should proceed for its disposal on merit notwithstanding theConsolidation notification. At this place, it would be profitable to reproduce the order dated 22.08.2023 passed in Civil Revision No.69 of 2000, which runs as under:- “………. In the case at hand it is the case of the defendants/petitioners itself in their written statement that the sale deed (Ext.5), which is the basis of claim of the plaintiffs is voidable on the ground of lack of legal necessity in as much as after attaining majority late Kanduri who executed the sale deed (Ext.5) though his grandfather Ananta in 1931 in respect of the suit tank in favour of one Brundaban Das, executed a sale deed in Page 9 of 13 // 10 // respect of the suit tank in favour of the contesting defendants. The question, therefore, that was necessary to be considered and was considered by the trial court was whether the alleged sale by Ananta, the grandfather is binding against Kanduri, the minor at the time of execution of sale deed. The prayer for declaration of title over the suit land, therefore, depended on the adjudication of the binding nature of sale deed (Ext.5), which the defendants challenged to be voidable. In such view of the matter, the appeal as well as the suit out of which it arises before the lower appellate court does not abate in terms of Section 4(4) of the O.C.H. &P.F.L. Act, 1972. The learned lower appellate court having rightly held so, there is no illegality or infirmity in the impugned order calling for interference of this court in its revisional jurisdiction. In the result, the Civil Revision is dismissed being devoid of any merit.” It has been clearly indicated above that the challenge from the side of the Defendants to the document is that it is voidable and as such the same be not given effect to in any way. It has been clearly stated in the order that the fate of the suit of the Plaintiffs is dependant upon the adjudication of the binding nature of the sale-deed, Ext.5, which is attacked by the Defendants as voidable. The First Appellate Court thusafter the above order of refusal to abate the First Appeal in view of consolidation notification, has assumed the jurisdiction to decide the Appeal which is continuation of the suit on merit, on the premises that the sale-deed, Ext.5 is voidable. Page 10 of 13 // 11 // Thus, once having assumed the jurisdiction to decide the suit taking a view that the sale-deed is voidable, the First Appellate Court has gone to say the same to be void and it now falls for consideration whether the contrary conclusion that it is void would stand or not. 14. It has been held in case of Y.B. Patil and Others Vrs. Y.L. Patil; 1976 (4) SCC 66 that:- “It is well settled that principles of resjudicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. In that case, the First Respondent applied before the Assistant Commissioner for restoration of watan under the provisions of Bombay Hereditary Officers Act. Possession was there on the ground that the Appellants who were strangers taken possession, the Assistant Commissioner accepted the application and directed possession to be restored to the Respondents.An Appeal against that order was dismissed. The Appellants then went in Revision. The Revision was accepted and the Appellants were held not to be the strangers to the watan, this conclusion was arrived at by deciding with the Assistant Commissioner and Deputy Commissioner that the watan had been acquired by Basangauda-(I). This order was again challenged by the Respondents carrying writ petition and the writ petition was accepted and it was held that the revisional forum could not have reopened the matter by setting aside the finding of fact rendered by the Assistant Commissioner and Deputy Commissioner. The revisional order being set aside and the revision stood remanded. The revisional forum thereafter, upheld the findings of the Page 11 of 13 // 12 // Assistant Commissioner and Deputy Commissioner that the watan had been acquired by Basangouda-(II) and not Basangouda-(I). The revision was dismissed. The Appellants then filed a writ petition before the High Court; the writ petition was also dismissed. That the finding being one of fact and it have being been rendered concurrently it is not liable to be reopened, the matter then went to the Apex Court. There the Apex Court came to conclude that when the above first writ petition, the High Court had recorded a finding and then direction to the revisional forum not to reopened the question of fact in revision. The revisional forum had rightly complied with the said direction and therefore, the Appellants are bound by the said judgment of the High Court and it is not opened to them to go behind that judgment in the subsequent Appeal, when no Appeal was filed against that judgment passed by the High Court in the first writ petition. Therefore, it has been said that once an order made in course of proceeding becomes final, it would be binding at the subsequent stage of that proceeding”. 15. Passing the facts situation of the present case through the above legal prism; it becomes clear that the First Appellate Court was having no jurisdiction to again turn back and hold that Ext.5 is void abinitio,concluding thereupon that no title thereunder had been conferred upon Brundaban Das. The finding of the First Appellate Court on the above score as to the nature of transaction in saying that the same is void thus cannot be sustained in the eye of law. Page 12 of 13 // 13 // Having held as above, the sale deed (Ext.5) since has not been challenged within the period prescribed under the law i.e. within three years of attainment of majority by Kanduri, the First Appellate Court ought not to have set aside the judgment and decree passed by the Trial Court. Therefore, the finding of the first Appellate Court on that score does not stand to legal scrutiny. Answer to the above substantial questions of law since are found to be enough to dispose of this Appeal by setting aside the judgment and decree passed by the First Appellate Court and restoring the decree passed by the Trial Court, there arises no further need to answer the other substantial questions of law. 16. In the result, the Appeal stands allowed. There shall, however, be no order as to cost. Narayan (D.Dash), Judge. Page 13 of 13