Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK R.S.A. No.263 of 2002 In the matter of an appeal under Section 100 C.P.C, 1908. *** Smt. Baidhai Sethi @ Baidei Sethi & Others … Appellants. -VERSUS- Sibaram Sethi & Another … Respondents. Counsel appeared for the parties: For the Appellants : Mr. P. Mohanty, Sr. Advocate. Mr. Pronoy Mohanty, Adv. For the Respondents : Mr. A. Das, Advocate (For respondent Nos.1 & 2). P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 21.07.2025 :: Date of Judgment :31.07.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT R.S.A. No.263 of 2002 Page 1 of 16 1. This 2nd Appeal has been preferred against the confirming Judgment. 2. The appellants in this 2nd Appeal are the LRs of the defendant No.1 in the suit vide T.S. No.62 of 1991 before the
Legal Reasoning
Trial Court and the appellants before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC. The respondent No.1 in this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.62 of 1991 and respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC. The respondent No.2 in this 2nd Appeal was the defendant No.2 before the Trial Court in the suit vide T.S. No.62 of 1991 and respondent No.2 before the First Appellate Court in the First Appeal vide T.A. No.5 of 1998-GDC. 3. The suit of the plaintiff (respondent No.1 in this 2nd Appeal, Sibaram Sethi) against the defendant No.1 was a suit for recovery of possession in the form of mandatory injunction in respect of the suit properties described in the Schedule of the plaint i.e. Ac.0.05 dec. out of Ac.0.10 dec. of plot No.247 R.S.A. No.263 of 2002 Page 2 of 16 under Khata No.646 in Mouza-Dura under Berhampur Tahasil. The genealogy described in Paragraph No.2 of the plaint is the family pedigree of the plaintiff and defendant No.2. As per the genealogy given in the plaint of the plaintiff, Hadu Sethi was their common ancestor. The said Hadu Sethi had two wives. Arjun Sethi, Laxman Sethi and Gop Sethi are the 3 sons of the first wife of Hadu Sethi. Narasinga Sethi and Govinda Sethi are the two sons of the second wife of Hadu Sethi. Plot No.247, Ac.0.10 dec. under Khata No.646 in Mouza- Dura originally belonged to Hadu Sethi. After the death of Hadu Sethi, the suit properties were divided between the sons and grandsons of Hadu Sethi. Accordingly, they were/are enjoying the same separately. The plaintiff and defendant No.2 purchased the share of Gobinda Sethi son of Hadu Sethi through R.S.D. No.3601 in the year 1979. The said purchased property of the plaintiff and defendant No.2 is situated adjoining the southern side of the defendants share. As such, R.S.A. No.263 of 2002 Page 3 of 16 the plaintiff and defendant No.2 possessed and enjoyed the purchased share of Gobinda Sethi described in the rough sketch map of the plaint with specific indication thereof as A,B,C & D as the owners of the same, which are the suit properties in the suit. The defendant No.1 has no right, title and interest over the suit properties of the plaintiff and defendant No.2. He (plaintiff) was working as a peon under Purushottampur Tahasil. He (plaintiff) stocked materials such as stones, bricks and sands etc for construction of a house on the suit properties. On dated 30.04.1991, he (plaintiff) found that, the defendant No.1 is making construction encroaching the suit properties using the materials gathered by the plaintiff. When the plaintiff objected to the same, the defendant No.1 did not respond and the defendant No.1 also gathered materials such as, stones, bricks and sands for proceeding with the construction works further. Therefore, the plaintiff approached the Civil Court by filing a suit vide T.S.No.62 of 1991 against the defendants praying for a declaration that, he (plaintiff) and Jagannath Sethi (defendant No.2) are the R.S.A. No.263 of 2002 Page 4 of 16 owners of the suit properties and to issue mandatory injunction against the defendant No.1 directing him to demolish the constructions raised by him (defendant No.1) on the suit properties and to deliver vacant possession of the same to the plaintiff, failing which, permission be given to the plaintiff to demolish the said constructions raised by defendant No.1 and to realize the costs thereof through the process of Court from the defendant No.1 along with other reliefs, if any, to which, the plaintiff is entitled for. 4. Having been noticed from the Trial Court in the suit vide T.S. No.62 of 1991, the defendant No.1 contested the suit of the plaintiff by filing his written statement denying the allegations alleged by the plaintiff in his plaint stating that, the suit plot No.247 Ac.0.10 dec. under Khata No.646 along with other joint properties were divided into 4 equal shares between Lakhmana, Gopi, Narasimha (defendant No.1) and Govinda and accordingly, they are possessing their said properties. He (defendant No.1) being the son of Hadu Sethi, is possessing his share. He has not encroached the land of plaintiff. The plaintiff is not the exclusive owner of the suit R.S.A. No.263 of 2002 Page 5 of 16 scheduled properties shown in the rough sketch map marked as A,B,C & D. The suit of the plaintiff is bad for non-joinder of necessary party. For which, the suit of the plaintiff is not maintainable and the same is liable to be dismissed. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No. 62 of 1991 and the said issues are: ISSUES Is the suit maintainable? Whether the plaintiff has got right, title and interest over 1. 2. the suit land? 3. interest over the suit land? 4. on the suit land and raised with constructions over the same? 5. Whether the defendant No.1 forcibly constructed the house Whether the defendants have got any right, title and To what reliefs? 6. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants, the plaintiff examined himself as P.W.1 and exhibited 4 documents from his side vide Exts.1 to 4. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant No.1 examined two witnesses on his R.S.A. No.263 of 2002 Page 6 of 16 behalf including him as D.W.1 and relied upon two documents from his side vide Exts.A & B. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiff and defendant No.2 and against the defendant No.1 and on the basis of the findings and observations made by the Trial Court in the issues in favour of the plaintiff and defendant No.2 and against the defendant No.1, the Trial Court decreed the suit of the plaintiff vide T.S. No.62 of 1991 on contest against the defendant No.1 as per its Judgment and Decree dated 28.11.1997 and 10.12.1997 respectively and declared the title of the plaintiff and defendant No.2 over the suit properties and directed the defendant No.1 to demolish the structures raised by him on the suit schedule land and to deliver vacant possession of the suit land to the plaintiff within 2 months from the date of Judgment and Decree assigning the reasons that, “the plaintiff has established his title and the defendant No.2 over the suit properties, but the the defendant No.1 has no R.S.A. No.263 of 2002 Page 7 of 16 title over the suit properties. The defendant No.1 has encroached the suit properties. For which, he (defendant No.1) is liable to remove the structures within two months from the suit properties.” 8. On being dissatisfied with the aforesaid Judgment and Decree passed by the Trial Court in T.S. No.62 of 1991 in favour of the plaintiff and defendant No.2 and against the defendant No.1, he (defendant No.1) challenged the same by preferring the First Appeal vide T.A. No.5 of 1998-GDC being the appellant against the plaintiff arraying him as respondent No.1 and also arraying defendant No.2 as respondent No.2. When, during the pendency of the First Appeal vide T.A. No.5 of 1998-GDC, the defendant No.1 (appellant) expired, then, in his place, his LRs were substituted as Appellant Nos.1(a) to 1(c). 9. After hearing from both the sides, the First Appellate Court dismissed that 1st Appeal vide T.A. No.5 of 1998-GDC of the defendant No.1 as per its Judgment and Decree dated 04.09.2002 & 16.09.2002 respectively concurring/confirming the findings and observations made by the Trial Court in the R.S.A. No.263 of 2002 Page 8 of 16 Judgment and Decree of the suit vide T.S. No.62 of 1991 in favour of the plaintiff and defendant No.2 and against the defendant No.1. 10. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide T.A. No.5 of 1998-GDC passed by the learned First Appellate Court, the LRs of the defendant No.1 preferred this 2nd Appeal being the appellants against the plaintiff and defendant No.2 arraying them as respondents. 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. is has suit the suit bad been the Whether I. completely and effectually adjudicated without Govinda being impleaded as a party for non-joinder of or necessary party? II. Whether the R.o.R can be relied on to give finding that, the plaintiff has title over the suit properties for passing the decrees in respect of reliefs sought for by the plaintiff? 12. I have already heard from the learned Sr. Advocate for the appellants (LRs of the defendant No.1) and the learned counsel for the respondents (plaintiff and defendant No.2). 13. When the aforesaid two formulated substantial questions of law are interlinked according to the Judgments and Decrees R.S.A. No.263 of 2002 Page 9 of 16 passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties in respect of the suit properties, then, both the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder: The prayers of the plaintiff in the suit vide T.S. No.62 of 1991 in respect of the suit properties described in the schedule of the plaint are for declaration of title and recovery of possession in the form of mandatory injunction. In order to have an instant reference in respect of the suit properties described in the schedule of the plaint vide T.S. No.62 of 1991 by the plaintiff (respondent No.1 in this 2nd Appeal) is depicted hereunder: Schedule Property situated in village Dura within Sub-Registrar, Berhampur bearing Khatian No.646, Plot No.247 Ac.0.05 from ( __________ ) i.e. breadth South to North 4/2 cubits and length East to West-27 cubits, bounded by:- East-College West-Road South-Thrashing floor of Jagannath ethi (son of Laxman Sethi). North-Thrashing floor of Narasingha Sethi (defendant No.1). R.S.A. No.263 of 2002 Page 10 of 16 14. Ext.1 is the R.o.R. of suit Khata No.646. It appears from Ext.1 that, the suit Khata No.646 in the Hal Settlement has been published in the name of Siba Sethi son of Khudi Sethi, Arjuna Sethi, Laxman Sethi, Narasinha Sethi & Gobinda Sethi sons of Hadu Sethi, Mohan Sethi son of Gopi Sethi. Accordingly, the Hal R.o.R of the suit land vide Ext.1 stands jointly in the names of Siba Sethi (plaintiff), Arjuna Sethi, Laxman Sethi, Narasinha Sethi (defendant No.1), Gobinda Sethi & Mohan Sethi. But, the plaintiff has not arrayed Arjuna Sethi, Laxman Sethi, Gobinda Sethi and Mohan Sethi as parties in the suit, though, their names have been recorded jointly in the Hal R.o.R of suit Khata No.646 vide Ext.1 along with the plaintiff and defendant No.1. It is the settled propositions of law that, in order to get a decree of declaration of title in respect of the properties covered under the jointly recorded R.o.R like Ext.1, all the recorded tenants of the said R.o.R or in case of death of any of the recorded tenants thereof, his/her LRs are necessary parties to the suit. R.S.A. No.263 of 2002 Page 11 of 16 Here in this suit/appeal at hand, though, the plaintiff has prayed for declaration of his title over a portion of plot No.247 under Khata No.646, but, he (plaintiff) has not arrayed all the jointly recorded tenants of the said Hal R.o.R vide Ext.1 or the LRs of any of the deceased recorded tenants of that R.o.R (Ext.1) as the parties in the suit. There is no explanation on behalf of the plaintiff about the cause and reason for non-impleadment of all the said jointly recorded tenants of the R.o.R vide Khata No.646 (Ext.1) as party in the suit. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions: i) ii) In a case between M/s. Rattna Oil Mills/Rice Mills Vs. Paramjit Singh & Others reported in 2008 (1) CCC 40 (SC) that, in a suit for declaration, the person whose names has been entered in the R.o.R, he should have been given opportunity of hearing by the Court. In a case between Ch. Surat Singh (dead) and others Vs. Manoharlal & Others reported in (1971) 3 SCC 889 that, property of a person cannot be dealt with behind his back. When, the names of Arjuna Sethi, Laxman Sethi, Gobinda Sethi and Mohan Sethi have been jointly recorded with the plaintiff and defendant No.1 in suit Khata No.646 vide Ext.1, then, at this juncture, in view of the principles of R.S.A. No.263 of 2002 Page 12 of 16 law enunciated in the ratio of the aforesaid decisions of the Apex Court, the said Arjuna Sethi, Laxman Sethi, Gobinda Sethi and Mohan Sethi or their LRs in case of their death should have been arrayed as party in the suit of the plaintiff, because they are necessary parties. For which, due to non- impleadment to the aforesaid necessary parties by the plaintiff in the suit vide T.S. No.62 of 1991 for declaration and recovery of possession, the suit of the plaintiff is not maintainable under law. 15. That apart, the plaintiff has sought for recovery of possession in the form of mandatory injunction praying for recovery of Ac.0.05 dec. of plot No.247 under Khata No.646 out of ( _________ ) as indicated in the schedule of the plaint. Undisputedly the area of plot No.247 is Ac.0.10 decimals. When it is forthcoming from the R.o.R vide Ext.1 relied by the plaintiff that, the suit properties are the jointly recorded properties of the plaintiff and others and when some of the jointly recorded tenants i.e. Arjuna Sethi, Laxman Sethi, Gobinda Sethi and Mohan Sethi or in case of their death, their LRs have not been arrayed as party in the suit R.S.A. No.263 of 2002 Page 13 of 16 filed by the plaintiff for declaration and recovery possession, then, at this juncture, the suit of the plaintiff cannot be held as maintainable under law on the ground that, the suit for recovery of possession cannot be maintainable in respect of joint and undivided properties as well as in respect of an unidentified properties without indicating specific identity of the properties showing its exact location out of entire properties of suit plot No.247. On this aspect the propositions of law has already been clarified in the ratio of the following decisions: I. II. III. IV.
Legal Reasoning
In a case between Sri Ainthi Mallik (dead) & Others Vs. Tarini Mallik reported in 2024 (II) OLR 960 (Para No.12) that, suit for declaration without filing suit for partition in respect of undivided property is not maintainable. In a case between Mary Pushpam Vs. Telvi Curusumary and Others reported in 2024 (4) Civ.C.C. 522 (SC) that, suit for possession has to describe the property in question with accuracy and all details of measurement and boundaries. In absence of the same suit would be liable to be dismissed on the ground of its identifiablity. In a case between Janaki Majhi (dead) & Others Vs. Nangi Majhiani (dead) & Another reported in 2024 (4) C.C.C. 97 (Ori.) that, suit for declaration of title and recovery of possession cannot be maintained in respect of joint and undivided property without partition of that property. In a case between Shri Madan Lal (through LRs) & Others Vs. Shri Ram Pratap (through LRs.) & Others reported in (2011) 177 DLT 159 that, a suit under Section 5 of the Specific Relief Act, a suit for recovery of possession did not lie, which relates to recovery of specific immoveable property, when plaintiff failed to establish his title over the specific/definite property stated as the suit properties. R.S.A. No.263 of 2002 Page 14 of 16 16. Here in this suit/appeal at hand, when the plaintiff has sought for declaration of title and recovery of possession in respect of Ac.0.05 decimals out of Ac.0.10 dec. of plot No.247 under Khata No.646 without indicating by a proper sketch map drawn to the scale showing its proper identity and when the Suit Khata vide Ext.1 has been recorded jointly in the name of the plaintiff, defendant No.1 along with four others and when all the recorded persons in Ext.1 have not been arrayed as a party in the suit and when Section 5 of the Specific Relief Act provides for recovery of specific immovable property and when the plaintiff has not specified the suit properties i.e. Ac.0.05 dec. out of Ac.0.10 dec. of plot No.247 sepcifically/definitely for establishing its proper identity, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the Judgments and Decrees passed by the Trial Court and First Appellate Court in T.S. No.62 of 1991 and in T.A. No.5 of 1998-GDC respectively declaring the title of the plaintiff over the suit properties i.e. Ac.0.05 dec. out of Ac.0.10 as well as the decree for recovery of possession of the same in the form R.S.A. No.263 of 2002 Page 15 of 16 of mandatory injunction against the defendant No.1 is not sustainable under law. For which, there is justification under law for making interference with the same through this 2nd Appeal filed by the appellant (legal heirs of defendant No.1). 17. Therefore, there is merit in the appeal of the appellants (LRs of the defendant No.1). The same must succeed. 18. In result, this 2nd Appeal filed by the appellants (LRs of the defendant No.1) is allowed on contest, but without cost. 19. The Judgments and Decrees passed by the Trial Court and First Appellate Court in T.S. No.62 of 1991 and T.A. No.5 of 1998-GDC are set aside. 20. The suit be and the same filed by the plaintiff (respondent No.1 in this 2nd Appeal) is dismissed on contest against the defendant No.1 but without cost giving liberty to the parties for partition of their legitimate shares, if any, in the suit plot No.247 by filing a suit for partition. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 01-Aug-2025 18:34:08 High Court of Orissa, Cuttack The 31 .07. 2025// Rati Ranjan Nayak Sr. Stenographer (ANANDA CHANDRA BEHERA) JUDGE R.S.A. No.263 of 2002 Page 16 of 16