Execution Case No. 1003 of 1947 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.410 of 2014 [In the matter of an appeal under Section 100 of CPC from the judgment dated 30.06.2014 and decree passed by learned District Judge, Jagatsinghpur in R.F.A. No.53 of 1997 arising out of the judgment and decree dated 15.07.1995 passed by learned Civil Judge (Sr. Division), Jagatsinghpur in T.S. No.49 of 1988] AFR Savitri Devi (Dead) & her L.R.s …. Appellants -Versus- Srikrushna Academy & Others …. Respondents Advocate(s) appeared in this case: For the Appellants : Mr. S.K. Mishra, Sr. Advocate with Mr. J. Pradhan, Advocate For Respondents : Mr. A.R. Dash, Additional Government Advocate Mr. R.N. Mishra, Advocate [For R-8] Mr. S.K Swain, Advocate [For R Nos-1 & 2] CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 31st October, 2025 Page 1 of 21 SASHIKANTA MISHRA, J. This is a plaintiff’s appeal against a confirming judgment. The suit filed by the plaintiff for declaration of his title and for correction of ROR being dismissed by the trial Court was confirmed in appeal. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The plaintiff’s case is that the suit land originally stood recorded in the name of Sk. Taju Mohammad, Sk. Jabar Mohammad, Sk. Manan Mohammad, Sk. Safiti Mohammad and Sk. Baboo Mohammad in the sabik record of rights published in 1930. The plaintiff purchased the land in a Court auction sale on 25.03.1949 in Execution Case No.1003 of 1947-48 of the Court of Deputy Collector, Execution Cuttack. The possession was delivered on 13.11.1949 through the legal process. Since then, the
Legal Reasoning
plaintiff is in possession by paying rent to the Tahasildar, Jagatsinghpur. He also sold Ac.0.08 decs of land towards the northern portion of suit land to one Jayanta Kumar Page 2 of 21 Das on 24.07.1978 and delivered possession. During the Hal settlement operation the settlement authorities wrongly recorded the entire land in the name of defendant No.1, illegally. The plaintiff issued notice to the Government under Section 80 of CPC and thereafter, filed the suit for declaration. 4. Defendant Nos.1 to 3 and the Proforma-defendant Jayanta Kumar Das filed their written statements. Defendant Nos.1 to 3 challenged the maintainability of the suit on the ground of non-joinder and mis-joinder of parties, limitation and of being hit by Section 42 of the Specific Relief Act. It was stated that the execution case is illegal and cannot affect the right of the parties. The Hal- ROR was published correctly after making spot enquiry. 5. The defendants further claimed that one Dewan
Legal Reasoning
Bahadur Srikrushna Mohapatra had purchased the suit property from the original owner vide registered sale deed in the year 1931 for establishing a school and he delivered possession of the same. The suit land is used as Page 3 of 21 playground on one portion and the school building is situated over the other portion. The school was taken over by the Government in the year 1961 and accordingly the land with building was handed over to the State Government. The settlement authorities being satisfied with the possession of defendant No.1 recorded its name in the Hal-ROR. The plaintiff was never in possession. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination:- “1.Whether the suit is maintainable? 2. Whether the plaintiff has cause of action to file the suit? 3. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? 4. Whether the suit is barred by the law of limitation? 5. Whether the suit is hit under section 42 of the Specific Relief Act? 6. Whether the plaintiff acquired possession of the suit land on 13.11.1949 by virtue of confirmation of sale in execution case No.1003 of 1947-48 through the legal process of the Executive Court? 7. Whether the defendants have got right, title, interest and possession over the suit property? 8. Whether the Hal settlement entries in respect of the suit property are valid, genuine and legal? 9. Whether the plaintiff is entitled to get the reliefs claimed?” Page 4 of 21 7. Taking up issue Nos.6, 7 and 8 at the first instance the trial Court took note of the evidence adduced by the plaintiff in support of his claim of having purchased the property through auction sale in the execution case as also of delivery of possession. On the other hand, the defendants did not plead or prove as to who was the rightful owner from whom Dewan Bahadur Srikrushna Mohapatra had purchased the land as claimed by them. Moreover, the sale deeds filed by them were not supported by the pleadings and they could not establish as to how the defendant No.1 got possession of the suit land. The trial Court therefore, held that the plaintiff is in exclusive and peaceful possession whereas, the defendants failed to prove their possession. It was also held that the defendants have no right, title, interest and possession over the suit land. Therefore, the recording of the name of defendant No.1 in the Hal-ROR is not valid or legal. On issue Nos.1, 3, and 9, the trial Court observed that the suit was for correction of Hal-ROR and declaration Page 5 of 21 of the recording of the name of the State in the Hal-ROR but the Collector and the Tahasildar were not impleaded as parties despite being necessary parties. The suit was therefore, barred for non-joinder of parties. It was further held that the plaintiff had not issued any notice under Section 80 of CPC to the authorities against whom he had sought for declaration and correction of ROR i.e., the Collector and the Tahasildar. As such, the suit was not maintainable. On such findings the suit was dismissed. Being aggrieved, the plaintiff carried appeal, which was heard by the learned District Judge, Jagatsinghpur. In course of hearing of the appeal, the plaintiff filed an application for amendment to incorporate the averment relating to the service of notice under Section 80 of CPC in the plaint. The contesting defendants filed application under Order 41 Rule 27 to exhibit some sale deeds. The First Appellate Court framed the following questions for determination:- “i. Whether requirement of Section 80 CPC can be cured and relates back to the date of Page 6 of 21 filing of the suit if incorporated during pendency of the suit? ii. Whether the Collector and the Tahasildar are necessary parties and notice under Section 80 CPC is essential for filing of the suit? iii. Whether to the First Appellate Court is the materials scrutiny precluded available on record, in absence of any cross-appeal or cross-objection filed by the defendants/respondents?” 8. On the first point, the first appellate Court held that the plaintiff had amended his plaint to aver that the notice under Section 80 was duly served and exhibited the copy of the notice and the postal receipts by way of additional evidence. The First Appellate Court was not inclined to accept the evidence so adduced on the ground that the AD Cards had not been filed and the notice did not bear the date on which it was sent. Moreover, the notice did not specify the relief claimed or the facts relating to the cause of action nor was it accompanied by a copy of the plaint. It was therefore, held that the documents exhibited subsequently are manufactured for which, the suit was rightly held to be not maintainable. Page 7 of 21 As regards the second point, the first appellate Court held that the Secretary to Government in the Department of Education having been impleaded as party, the Collector and the Tahasildar are not necessary parties. On the third point, the first appellate Court while not accepting the additional evidence adduced by the defendants held that the Hal-ROR having been published on 10.04.1985 but not having been challenged within three years, the suit is barred by limitation. On the above findings basically, the appeal was dismissed. 9. Being further aggrieved, the plaintiff has preferred the present second appeal, which was admitted on the following substantial questions of law. “1. Whether the lower appellate court is right in holding that the plaintiff’s suit is liable to be dismissed on the ground of non-service of notice under Section 80 of the CPC before institution of the suit and by further saying that there had been an attempt to patch up the lacunae by producing Ext. 10 which is a manufactured one for the purpose and whether such a finding is perverse? 2. Whether the courts below are right in dismissing the defendants have totally failed to prove their suit when even the Page 8 of 21 case by adducing evidence in support of their claim? 3.Whether the learned Appellate Court erred in law in accepting the sale deed No.16969 dated 08.06.1931 and sale deed No.2453 dated 03.07.1931 as additional evidence and Order-41 Rule 27 of CPC in absence of originals thereof and further in the absence the of any material evidence defendant to accept the sale deeds as Secondary Evidence? laid by the plaintiff the claim of is 4.When essentially against the School defendant Nos.1 and 2, whether non-service of notice under Section 80 of CPC will debar claim of the plaintiff when defendant Nos.3 to 5 are not necessary parties to the suit?” 10. Heard Mr. S.K. Mishra, learned Senior Counsel with Mr. J. Pradhan learned counsel for the plaintiff- appellants; Mr. A.R. Dash, learned Additional Government Advocate for the State-defendants; Mr. R.N. Mishra, learned counsel for the defendant-respondent No.-8 and Mr. S.K. Swain, learned counsel appearing for the defendant-respondent Nos.1 and 2. 11. Mr. Mishra would argue that both the Courts below have committed manifest error in holding that the service of notice under Section 80 of CPC before institution of the suit on the public officers impleaded as parties to Page 9 of 21 the case was mandatory even though, the plaintiff had not claimed any specific relief from the said offices. Even otherwise, the plaintiff amended his plaint and also adduced evidence of service of notice on the Collector, which was not accepted by the first appellate Court on flimsy and untenable grounds. The first appellate Court entered into the technicalities unnecessarily and even though, there was evidence of substantial compliance of Section 80 of CPC, it was held otherwise. Mr. Mishra further argues that both the Courts below have consistently held that the plaintiff acquired valid title over the suit property followed by possession by way of auction purchase of the suit land in the execution case since 1949. The Courts below also held that the contesting defendants could not establish their title or possession over the suit property. Under such circumstances, the natural corollary would have been to declare the title of the plaintiff and for directing correction of the record of rights but both the Courts below dismissed the suit purely on technicalities. Page 10 of 21 12. Mr. A.R. Dash, learned AGA would argue that the school in question having been aided and taken over by the State Government and the suit land being admittedly recorded in the name of the State in the Hal- ROR the notice under Section 80 of CPC is mandatory in view of the relief claimed by the plaintiff. Service of such notice not having been validly proved, the suit was rightly dismissed. 13. Mr. S.K Swain, while making similar arguments as the State counsel argues that the suit land is under the possession of the school wherein, a portion is used as playground and the building situates over another portion. The plaintiff claims title on the basis of an execution case in which the defendants were not parties and therefore, any order passed therein is not binding on them. 14. In view of the rival contentions noted above and the ground on which the suit was dismissed by the trial Court and confirmed by the first appellate Court, it is evident that the first question that falls for consideration is the maintainability of the suit vis-a-vis compliance of Page 11 of 21 Section 80 of CPC. In this regard, it is to be noted that the original plaint was silent with regard to the service of notice but by way of amendment on 19.08.1993, it was averred that notice under Section 80 of CPC was validly served. 15. Further, the first appellate Court permitted the plaintiff to adduce additional evidence in the form of copy of the Section 80 of CPC notice as well as the postal receipts which were marked as Exhibits-10, 11 and 11/F respectively. The first appellate Court was not inclined to accept such evidence on the ground that copy of the notice does not bear the date on which it was sent and there was some tampering. It was also held that the details of the relief claimed and all the facts relating to the cause of action were not mentioned in the notice. 16. Copy of the notice marked Exhibit-10 reveals that the advocate for the plaintiff intimated that the plaint was annexed to the notice and such notice was issued to the Headmaster of the school in question and to defendant Nos.3, 4 and 5. Some AD cards are available in Page 12 of 21 the case record. As already stated, the first appellate Court did not deem it proper to place any reliance on such evidence. This Court would not like to enter into the controversy as regards the acceptability of the evidence so adduced by the plaintiff. It would rather be proper to first consider whether such notice was mandatorily required to be served on the defendants or not. In this context, it would be apposite to refer to the relief claimed by the plaintiff in the plaint under paragraph-8 which is reproduced below:- “a. Let it be declared that the entry of the name of the defendant No.1 in the Hal settlement ROR in respect of the suit schedule land is illegal and wrong and the plaintiffs title be declared in respect of the said suit land. b. The tenant name in column-2 of the Hal Settlement ROR be corrected by putting the name of the plaintiffs and the defendant No.1 name be deleted from the said column and accordingly the Tahasildar, Jagatsinghpur be directed to correct the said settlement ROR. c. Let the defendant No.1 to 5 may be permanently restrained from going upon the the suit peaceful possession of the plaintiffs over the suit land and from making any construction and structure over the suit land. If it is found, the plaintiffs are being d. dispossessed during the pendency of the suit possession may be recovered and delivered to them through Court. land and from interfering with Page 13 of 21 e. Cost of the suit be decreed against the defendants. Any other reliefs to which the plaintiffs f. are entitled in law also decreed in favour of the plaintiffs.” 17. The relief claimed under serial Nos. (a) and (b) quoted above are relevant for the present discussion. It is evident that the plaintiff’s claim for declaration that the entry of the name of defendant No.1 in the Hal-ROR is illegal and wrong is not an independent or isolated relief but the same is followed by the claim of declaration of his title over the suit land. In other words, the declaration sought for in respect of defendant No.1 is entirely dependent on the plaintiff’s claim of title. To put it differently, the plaintiff can only succeed in the suit if he can prove his title over the suit property. If he is held to have established his title then, all other reliefs claimed by him become consequential. 18. The trial Court has held the suit to be one for correction of Hal-ROR by declaring the recording as illegal. This, in the considered view of this Court is a fundamental error in view of what has been discussed hereinbefore. Page 14 of 21 Regardless of framing of the relief in the plaint, fact remains that the central relief claimed by the plaintiff is declaration of his own title as, without such declaration, the other reliefs cannot be conceived of. 19. If such be the case, it cannot be said that the plaintiff was obliged to serve notice under Section 80 of CPC on the State-defendants impleaded as parties. There is no quarrel with the proposition that service of notice under Section 80 is mandatory, where any relief is claimed against the Government or public officers. However, the position would be different where no relief is claimed against the Government or public officers even though they have been arrayed as parties. As already stated, the main relief was with regard to declaration of title of the plaintiff as against defendant No.1. If the plaintiff succeeds, the other relief such as correction of Hal-ROR is rendered consequential entirely flowing from the main relief. Addressing a similar question, the Gauhati High Court in the case of Anil Pantati and Ors. v. Upen Page 15 of 21 Kumar Saikia1 held that once the suit was filed against the public officer without any relief being claimed, no notice shall be required. 20. Even otherwise, it has been held that Section 80 notice is a condition precedent but nevertheless being a mere procedural requirement does not go to the root of the jurisdiction in the true sense of the term and that it is being capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit. Reference can be had to the judgment of Supreme Court in the case of State of A.P v. Pioneer Builders2 in this regard, wherein the following was observed:- “19. Bearing in mind the aforenoted legal position, we advert to the facts in hand. As noted above, the Subordinate Judge, vide order dated 2-2-1993 came to the conclusion that “there was no tenable ground to refuse the relief asked for”. Though there may be some substance in the submission of Mr Chaudhari, learned Senior Counsel appearing the for application, the requirement of notice, is cryptic but the fact remains that by allowing the application, after hearing the defendant State, the Judge has the order allowing that seeking dispensation the State, of 1 (CRP (IO)/241/2022 2 (2006) 12 SCC 119 Page 16 of 21 remanded back immediate order. Had the maintainability of opined that the suit is for the purpose of obtaining an urgent and the satisfaction been against the contractor, the court was bound to return the plaint to the contractor for re-presentation after curing the defect in terms of sub-section (1) of Section 80. Although we do not approve of the manner in which the afore- extracted order has been made and the leave has been granted by the Subordinate Judge but bearing in mind the fact that in its reply to the application, the State had not raised any specific objection about the application on the ground that no urgent and immediate relief had either been prayed for or could be granted, as has now been canvassed before us, we are of the opinion that having regard to the peculiar facts and the conduct of both the parties it is not a fit case where the matter should be the Subordinate Judge for reconsideration. We find it difficult to hold that the order passed by the Subordinate Judge on the contractor’s application under Section 80(2) CPC was beyond his jurisdiction. Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held that having participated original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 CPC the State had not raised such a plea in the written statement or additional written statement filed in the suit and, therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on the facts of each case and is liable to be tried by the court, if raised, which, as noted above, is not the case here.” the in to 21. In the instant case, the defendant Nos.3, 4 and 5 are public officers. Defendant No.3 joined defendant Page 17 of 21 Nos.1 and 2 to file written statement while no written statement was filed by defendant Nos.4 and 5. In the written statement so filed no plea regarding non-service of notice was taken. Thus, the public officers arrayed as parties have not raised this question for which they must be deemed to have waived the requirement. A learned Single Judge of the Allahabad High Court in the case of Ishtiyaq Husain Abbas Husain Vs. Zafrul Islam Afzal Hussain & Others3, held as follows:- “It appears to me that the plea of want of notice is open only to the Government and the officers mentioned in section 80 and it is not open to a private individual. In this particular case the State Government did not even put in appearance. The notice, therefore, must be deemed to have been waived.” 22. Thus, viewed from any angle, the finding of both the Courts below that the suit was bad for non-service of notice under Section 80 is untenable. Substantial question of law No.1 and 4 are answered accordingly. 23. As already stated, both the Courts below found that the plaintiff established his valid title over the suit property having purchased the same by way of auction 3 AIR 1969 Alld. 161 Page 18 of 21 purchase from its lawful owner way back in the year 1949. The contesting defendants on the other hand, despite adducing additional evidence could not establish their title. Therefore, as between the plaintiff and contesting defendants, both the Courts below held that the plaintiff has title over the property. Having held so the suit was dismissed on technical grounds. The finding of the Courts below regarding title of the plaintiff has not been questioned by the contesting defendants at all and must therefore, be treated as final. It therefore, becomes academic to delve into the question as regards acceptance of the additional evidence adduced by the defendants in support of their claim of title in the form of sale deeds dated 08.06.1931 and 03.07.1931. 24. As regards the question of limitation, the first appellate Court held that the Hal-ROR having been published on 10.04.1985, the suit was not filed within three years for which the same is barred by limitation. This Court is unable to accept the finding for the reason that as already stated, this is a suit primarily Page 19 of 21 for declaration of title wherein correction of ROR is a consequential relief. It has been consistently held by this Court that the suit for correction of ROR based on antecedent title can always to be filed even beyond the period of limitation as the central question to be determined is the title with the relief of correction being consequential thereof. For such reason therefore, the first appellate Court must be held to have committed an error of law in holding the suit to be barred by limitation. The substantial question Nos.2 and 3 are answered accordingly. 25. Thus from a conspectus of the analysis of facts and law as well as the contentions raised, this Court is of the view that both the Courts below have erred in dismissing the suit despite holding the plaintiff to have established his valid title and possession over the suit property. The impugned orders therefore, warrants interference. 26. In the result, the appeal is allowed. The impugned judgments are set aside. The suit of the plaintiff Page 20 of 21 is decreed by declaring his title over the suit property and granting all the consequential reliefs claimed by him. …………..……………. Sashikanta Mishra Judge Orissa High Court, Cuttack. The 31st of October, 2025/Puspanjali Ghadai, Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Dec-2025 18:28:37 Page 21 of 21