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IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.3 of 2023 (An appeal under Section 104 read with Order-XLIII Rule 1(u) of Civil Procedure Code, 1908) Jayanti Barik and others … Appellants -versus- Ramakanta Barik and others … Respondents For Appellants : Mr. A. Mohanta, Advocate For Respondents : Mr. S.K. Mohanty, Advocate on behalf of Mr. D.K. Pattanayak, Advocate (Respondent Nos.1 to 3) CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF JUDGMENT:06.08.2024 G. Satapathy, J. 1. This is an appeal from order under Section 104 read with Order-XLIII Rule-1(u) of the Code of Civil Procedure, 1908 (in short “the CPC”) questioning the legality of the judgment dated 30.07.2022 passed by the learned Additional District Judge, Champua in RFA No.13 of 2017. SAO No.3 of 2023 Page 1 of 15 2. By the aforesaid order, the learned ADJ, Champua has remitted the matter back to the learned
Legal Reasoning
trial Court for framing of additional issue and to decide the same with regard to right, title and interest over the suit property. Further, while passing such order, the learned ADJ, Champua has also stayed the operation of judgment and decree passed by the learned trial Court in CS No.28 of 2015 till disposal of the additional issue. 3. The facts in precise is that the present appellants being the plaintiffs had instituted the suit in CS No.28 of 2015 against the present Respondents as Defendants in the Court of learned Civil Judge (Sr. Divn.), Champua by praying therein to evict the Defendant Nos.1 to 3 (D1 to 3) along with realization of arrear rents amounting to Rs.27,000/- from D1 and D2 jointly and Rs.27,000/- from D3 individually. According to the plaintiffs, the suit schedule land under Plot No.402/1487 of Khata No.328 measuring an area to the extent of Ac.0.390 decimals of Mouza-Barbil with Kissam-Gharabari was originally recorded in the name
Legal Reasoning
of Raja Ghana and Srimati Ghana and a pucca house SAO No.3 of 2023 Page 2 of 15 was constructed thereon, but plaintiff No.1 (P1) was the widow of Khetra Ghana, whereas plaintiff Nos.2 to 5 (P2 to 5) with D4 and D5 are the daughters of late Raja Ghana, who died in the year 2011 leaving behind the plaintiffs and D4 and D5 as the successors-in-interest. Due to family dissension and dispute, D4 and D5 were not cooperating with the plaintiffs and thereby, they were impleaded in the suit as Proforma Defendants. After death of Srimati Ghana, Raja Ghana became the absolute owner and in possession of the suit schedule land and during his lifetime, he constructed a pucca residential house on a portion of the suit schedule land standing over an area Ac.0.100 decimals and he gave the residential house on rent to Dhania Barik and Banshi Barik, but after death of Dhania Barik and Banshi Barik, their sons D1 to 3 continued to reside in the same house by paying monthly rent regularly to Raja Ghana. After the death of Raja Ghana on 27.05.2011, D1 and 2 jointly paid Rs.1,000/- and D3 separately paid Rs.1,000/- as monthly rent to the P1 for above two years. It is alleged by the plaintiffs that SAO No.19 of 2009 Page 3 of 15 since D1 & 3 had defaulted in paying the rent from January, 2013 and the plaintiffs wanted to modify the suit house for commercial purpose, on 13.03.2014 P1 sent a pleader notice to D1 to 3 to vacate the house standing on the suit land by clearing the arrear rents. Since D1 to 3 did not pay the arrear rents, the plaintiffs instituted the suit against the defendants for eviction and realization of arrear rents. In response to the summons of the suit, D1 to 3 filed their joint written statement denying all the allegations made therein and inter-alia pleading that the suit is not maintainable and plaintiffs have no cause of action to file the suit. Further, D1 to 3 had resisted the claim of the plaintiffs by stating that the suit is barred by law of limitation and hit by provision of estoppels, res-judicata, waiver and acquiescence, but they admitted the fact that the suit schedule land stands recorded in the name of Raja Ghana and Srimati Ghana, however, resisted the claim of the plaintiffs to be the absolute owner in possession of the properties as the successor of Raja Ghana and Srimati Ghana, but SAO No.3 of 2023 Page 4 of 15 it was also denied by the contesting defendants that after the death of Srimati Ghana, Raja Ghana became the absolute owner of the properties or Raja Ghana constructed the pucca house on suit plot or they were paying rents for the suit house. According to defendants, Raja Ghana was the son of Khetra Ghana who was the husband of Srimati Ghana and after the death of Khetra Ghana, his widow Srimati Ghana got married to Baju Barik and through him, Srimati Ghana was blessed with two sons namely, Ramachandra @ Dhania and Ghasia. Further, it was also claimed in WS that D1 & 2 are the legal heirs of Ramachandra @ Dhania, whereas D3 is the son of Ghasia. It was claimed by contesting defendants that Srimati Ghana was the owner of 50% of the suit schedule land under Khata No. 328 and after her death, the suit property devolved upon them (contesting defendants) as her successors and, therefore, the claim of the plaintiffs was resisted in the above manner. In the above backdrop, the suit was prayed to be dismissed by the contesting defendants. SAO No.19 of 2009 Page 5 of 15 4. On the basis of the rival pleadings, the learned trial Court framed as many as 9 issues and proceeded with the trial of this case. After appreciating the evidence upon hearing the parties, the learned Civil Judge (Sr. Divn.), Champua decreed the suit in favour of the plaintiffs and directed D1 to 3 to vacate the suit premises within three months from the date of passing of the decree with liberty to the plaintiffs to take possession of the house in due process of law. 5. Feeling aggrieved with the judgment and decree, the D1 to 3 filed the appeal in RFA No.13 of 2017 which was disposed of by the learned ADJ, Champua by the impugned judgment remitting the matter back to the learned Civil Judge (Sr. Divn.), Champua to frame an additional issue and decide the same with regard to right, title and interest of the parties. 6. In assailing the impugned judgment, Mr. Ashutosh Mohanta, learned counsel for the appellant submits that the learned 1st Appellate Court has erred in remitting the matter back to decide the right, title SAO No.3 of 2023 Page 6 of 15 and interest of the parties by framing an additional issue thereon, since the issue No.8 in the suit pertains to the question of declaration of right, title and possession of the plaintiffs over the suit property, but notwithstanding to such facts, the learned 1st Appellate Court has passed a direction to frame an additional issue and decide the in accordance with law. Further, he by taking this Court through the decision on issue No.8 submits that it has already been rightly answered by the Civil Judge (Sr. Divn.), Champua. Accordingly, Mr. Mohanta has prayed to allow this appeal and set aside the impugned judgment and decree by directing the 1st Appellate Court to decide the appeal on merit. 7. On the other hand, Mr. S.K. Mohanty, learned counsel appearing on behalf of Mr. D.K. Pattanayak, learned counsel for the Respondent Nos.1 to 3 submits that the learned 1st Appellate Court has rightly decided the appeal by remitting the matter, since the right, title and interest of the plaintiffs has not been properly adjudicated upon by the learned trial SAO No.19 of 2009 Page 7 of 15 Court. Accordingly, Mr. Mohanty has prayed to dismiss the present appeal. 8. After having considered the rival submissions upon perusal of record, since the dispute pertains to the 1st Appellate Court judgment with regard to framing of issue on right, title and interest, this Court straight away proceed to re-examine and relook the impugned judgment passed by the learned Civil Judge (Sr. Divn.), Champua in the suit, wherein the learned trial Court has formulated the following question under issue No.8:- (i) Whether the plaintiffs are entitled to right, title and possession over the suit property? Although, there is an issue on right, title and possession of the plaintiffs over the suit property, but the learned 1st Appellate Court in remitting the matter back to the learned Civil Judge (Sr. Divn.), Champua has asked for framing the same issue. 9. A perusal of the finding of the learned trial Court on issue No.8, it appears that the learned trial SAO No.3 of 2023 Page 8 of 15 Court has recorded the following findings under issue No.8:- title, “As far as this issue is concerned, it reveals from the pleadings of the plaintiffs that they have not made any prayer for interest. The declaration of right, contesting defendants while arguing in this case submitted that without seeking the relief of declaration of right, title and interest, the plaintiffs cannot pray for the other prayers, to support this, he relied on the decision of [AIR 2005 of Karnatak of 419] in the case of Putlabai Vrs. VAijnath and others have held that “Specific Relief Act (47 of 1963), S.38-Injunction-Suit injunction without seeking relief of declaration of title-Is maintainable- Particularly, when title of plaintiff is unassailable”. for bare This court is of considered view that the present facts and circumstances of this case is something different from the present case. In this case, as discussed above, it is already found that the plaintiffs have a valid title in respect of the suit land. This is a suit for eviction along with the prayer of recovery of the rent as discussed above, the plaintiffs along with defendants no.4 and 5 are found to be rightful owner in respect of suit schedule land. Being the absolute owner, the plaintiffs have a very right to file the suit for eviction if any other persons having no title resided, possessed or occupied his or her right. Accordingly, this issue is answered in favour of the plaintiffs.” 10. A careful analysis of the above finding on issue No.8, it appears that the learned trial Court has SAO No.19 of 2009 Page 9 of 15 not answered the issue properly by discussing the evidence and pleadings of the parties available on record by simply holding that the suit is for eviction along with prayer for recovery of the rent and the plaintiffs and D4 & D5 are found to be rightful owner in respect of the schedule land. It, however, appears to the Court that such finding of the learned trial Court is not in accordance with law and weight of evidence, rather the same appears to be on mere assumption. Learned counsel for the appellants has also taken this Court to the finding of the learned trial Court on issue Nos.5 and 7, which are questions relating to the ownership and possession of the plaintiffs over the suit land in question, but this Court on careful perusal of the findings of the learned Civil Judge (Sr. Divn.), Champua on these two issues, is of the opinion that there is absolutely no discussion about right, title and interest of the plaintiffs over the suit land, no matter the learned trial Court has recorded some finding on these issues, however, it has not decided the core issue of right, title and interest of the parties over the suit land. SAO No.3 of 2023 Page 10 of 15 11. It, however, appears to the Court that although the 1st Appellate Court has directed for framing of additional issues on right, title and interest, which appears to be erroneous, since there is already an issue on the plaintiffs’ right, title and possession over the suit property under issue No.8. However, the findings recorded by the learned trial Court on such issue appears to be inconsistent and, thereby, the remand order as passed by the learned 1st Appellate Court is otherwise correct on the ground that the learned trial Court has not recorded a proper finding on the said issue of right title interest of the plaintiffs over the suit land by duly analyzing the pleadings and evidence on record. In such view of the matter, the impugned judgment of the 1st Appellate Court cannot be questioned for fresh adjudication on issue No.8, but the learned 1st Appellate Court appears to be confused while passing the impugned judgment by staying operation of the judgment and decree of the trial Court and directing disposal of the suit within three months. For clarity, the exact verbatim of the operative part of SAO No.19 of 2009 Page 11 of 15 the impugned judgment of learned ADJ, Champua is extracted below:- following observation. “The RFA No. 13 of 2017 is disposed off with The operation of the judgment and decree of the trial Court passed in CS 28 of 2015 is hereby stayed till disposal of additional issue. The case record be remanded back to trial Court for framing of additional issue and to decide the issue regarding the right, title and interest over the suit property. The parties are at liberty to adduce additional and further evidence subject to cross-examination by opposite party. The parties are directed to present their case before the trial Court within fifteen days. The trial Court is directed to dispose off the suit within three months”. In addition, the aforesaid contradictory direction as found in the operative part of the impugned judgment gains momentum, when it is further found from the judgment of the learned 1st Appellate Court that the judgment and decree of the learned trial Court has not been set aside, rather the same has been stayed. Further, if the learned 1st Appellate Court is not satisfied with the findings of the learned trial Court for want of necessary issue, it is left with two options; firstly, if there is sufficient evidence on record to enable SAO No.3 of 2023 Page 12 of 15 it to pronounce judgment, it may resettle issue and finally determine the suit and secondly, if according to it, the trial Court has omitted to frame or try any issue; or to determine any question of fact, which is essential to the right decision of the suit upon merits, it may frame issue and refer them for trial to the trial Court and shall direct the trial Court to take the additional evidence required. In this case, it appears to this Court that the learned 1st Appellate Court is of the considered opinion that the core issue of right, title and interest of the plaintiffs over the suit property has neither been framed nor has it been decided which is of course erroneous and contrary to the fact since such issue is already there under issue No.8 which has not been properly adjudicated upon. Whatever may be the situation, in either case, the impugned judgment of the learned 1st Appellate Court demonstrates a case of close remand under Order XLI, Rule-25 of the CPC, since the issue on right, title and interest of the plaintiffs has not been properly adjudicated. SAO No.19 of 2009 Page 13 of 15 12. In the aforesaid situation and discussions made hereinabove, the inevitable consequence is that the learned trial Court is required to decide issue No.8 afresh by taking evidence from both the sides and returned the same together with the evidence to the learned 1st Appellate Court for deciding the appeal in RFA No. 13 of 2017 on merit. Hence, the learned Civil Judge (Sr. Divn.), Champua is, accordingly, requested to proceed to try issue No.8 and decide the same by affording opportunity to the parties to lead fresh evidence and returned its findings on issue No.8 together with evidence within a period of three months to the 1st Appellate Court, who thereupon proceed to decide the Appeal in RFA No. 13 of 2017 afresh by following procedure of Order XLI, Rule-26 of the CPC. 13. In the result, the present appeal is accordingly disposed of with partial modification on contest and the impugned judgment of learned 1st Appellate Court is hereby set aside and modified to the
Decision
extent indicated above. There is no order as to costs. SAO No.3 of 2023 Page 14 of 15 14. A copy of this order be immediately communicated to the learned trial Court and 1st Appellate Court, Champua for compliance. Parties are directed to co-operate with both the Courts by appearing therein. If one or more of the contesting party(ies) do/does not appear, notice be issued in accordance with law for his/their appearance. Needless to say, the interim order passed to stay the further proceeding of CS No. 28 of 2015 stands vacated and merged with this final order. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack, Dated the 6th day of August, 2024/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-Aug-2024 20:26:57 SAO No.19 of 2009 Page 15 of 15