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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.17 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Raghunath Mishra …. Appellant -versus- Kailash Chandra Behera and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. S.D. Das, Sr.Advocate. assisted by Mr. M. Faradish, Advocate. For Respondents - Mr. A.K. Mishra, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :03.04.2025 :: Date of Judgment :16.04.2025 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellant in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.20 of 1983 and appellant before the First Appellate Court in the First Appeal vide T.A. No.18 of 1989.
Legal Reasoning
The respondents in this second appeal were the defendants before the Trial Court in the suit vide T.S. No.20 of 1983 and respondents before the First Appellate Court in the First Appeal vide T.A. No.18 of 1989. S.A. No.17 of 1997 Page 1 of 12 3. The suit of the plaintiff (appellant in this second appeal) before the Trial Court vide T.S. No.20 of 1983 against the defendants (respondents in this second appeal) was a suit for eviction. 4. According to the pleadings of the plaintiff, the suit land is A0.14 decimals out of A0.78 decimals of Plot No.4764 under Khata No.1643/4 in ward No.18 of Baripada Municipality described in Schedule ‘A’ of the plaint. As per the averments made in the plaint of the plaintiff, the entire Plot No.4764 measuring an area A0.78 decimals originally belong to Narayan Mishra Panigrahi (grandfather of the plaintiff). Narayan Mishra Panigrahi died in the year 1939 leaving behind his three sons i.e. Krishnna Chandra Mishra, Purnna Chandra Mishra and Nilamani Mishra alias Nilamber Mishra. Krishnna Chandra Mishra died in the year 1978 leaving behind the plaintiff along with his widow mother and other brothers. After the death of Narayan Mishra Panigrahi in the year 1939, the suit Plot No.4764 along with other properties left by him devolved upon his three sons i.e. Krishnna Chandra Mishra, Purnna Chandra Mishra and Nilamani Mishra. Subsequent to the death of Narayan Mishra Panigrahi, his three sons including the father of the plaintiff partitioned their all joint properties including the suit Plot No.4764. In such partition, the suit Plot S.A. No.17 of 1997 Page 2 of 12 No.4764 along with some other properties fell into the share of the father of the plaintiff i.e. Krishnna Chandra Mishra. When Krishnna Chandra Mishra died in the year 1978, then, the plaintiff filed a suit vide T.S. No.20 of 1968 against his brothers and mother for partition of his own share in the properties left by his father including the suit Plot No.4764. In such partition, the suit Plot No.4764 fell into the share of the plaintiff and accordingly, the plaintiff is the owner of the suit properties. Krishnna Chandra Mishra (father of the plaintiff) during his life time, he (Krishnna Chandra Mishra) had given different portion of suit Plot No.4764 to different persons on lease basis. The suit land described in Schedule ‘A’ measuring an area of A0.14 decimals was leased out by Krishnna Chandra Mishra (father of the plaintiff) in favour of the father of the defendant Nos.1 to 3 and husband of the defendant No.4 i.e. Nakula Behera in the year 1942 through a lease deed. On the strength of such lease deed, Nakula Behera was possessing the suit land, but, in the year 1964, the suit land vested in the State of Odisha, because the suit plot was lakhraj land. After vesting of the suit properties in the State, Krishnna Chandra Mishra applied before the O.E.A. Collector for settlement of the suit properties in his name. The O.E.A. Collector settled the suit properties in the name of Lakhrajdar i.e. in the name of his grandfather Narayan Mishra Panigrahi. As Nakula S.A. No.17 of 1997 Page 3 of 12 Behera (predecessor of the defendants) was under the permissive possession over the suit properties under the plaintiff on the basis of the lease deed, for which, after vesting of the suit properties in the State, the plaintiff requested Nakula Behera to vacate the possession of the suit land, but, as Nakula Behera had built a kutcha house over the suit properties, for which, except the house portion, the possession of rest other portions i.e. except the suit properties, the rest portions of Plot No.4764 were delivered by him (Nakula Behera) to the plaintiff. When in spite of request of the plaintiff to the defendants on dated 20.10.1982 for vacation of the suit properties in his favour, they (defendants) did not vacate, then without getting any way, the plaintiff approached the Civil Court by filing the suit vide T.S. No.20 of 1983 praying for eviction of the defendants from the suit properties. 5. Having been noticed from the Trial Court in the suit vide T.S. No.20 of 1983, the defendants contested the same by filing their joint written statement denying the averments made by the plaintiff in his plaint taking their stands therein that, the father of the defendant Nos.1 to 3 and husband of the defendant No.4 i.e. Nakula Behera got the suit properties from the father of the plaintiff i.e. from Krishnna Chandra Mishra through a permanent lease in the year 1942 and since 1942, he was in occupation over the suit properties and their predecessor i.e. Nakula Behera had constructed a kutcha house initially therein, wherein S.A. No.17 of 1997 Page 4 of 12 he along with his family members were residing and subsequent thereto, Nakula Behera constructed a pucca house on the same, in which, electric and water connections were provided and the Holding number of the house of the defendants over the suit properties has been allotted by the Baripada Municipality in favour of the defendants and the father of the plaintiff had never recovered the possession of any portion of the suit properties either from Nakula Behera or from the defendants at any point of time till yet. The plaintiff has no interest in the suit properties and they (defendants) are possessing the suit properties and they had/have been residing on the same since the year 1942 i.e. since the time of their predecessor Nakula Behera on the basis of the permanent lease deed executed by the father of the plaintiff Krishnna Chandra Mishra in favour of their predecessor Nakula Behera and as the plaintiff has no interest over the suit properties, for which, the suit of the plaintiff is liable to be dismissed against them (defendants). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.20 of 1983 and the said issues are:- ISSUES (i) (ii) (iii) (iv) Is the suit maintainable? Is the suit barred by principles of waiver, acquiescence, estoppels and limitations? Is the suit bad for non-joinder of necessary parties? Whether the plaintiff is entitled to a decree for eviction against the defendants? S.A. No.17 of 1997 Page 5 of 12 (v) Is the plaintiff entitled to any relief? 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants in the suit vide T.S. No.20 of 1983, the plaintiff examined four witnesses on his behalf including him and his brother as P.Ws.1 & 4 and exhibited series of documents vide Exts.1 to 4. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined three witnesses from their side including defendant No.1 as D.W.1 and relied upon series of documents vide Exts.A to D. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the Trial Court in all the issues against the plaintiff, the Trial Court dismissed the suit of the plaintiff vide T.S. No.20 of 1983 as per its judgment and decree dated 23.02.1989 and 09.03.1989 respectively assigning the reasons that, “the plaintiff has failed to establish his any interest over the suit properties and likewise the suit of the plaintiff is not maintainable for non-joinder of all the necessary parties. Because, the plaintiff has claimed his title over the suit properties on the basis of the settlement of the suit properties in O.E.A. Case No.724 of 1965-66 w.e.f. 01.10.1964 as per Ext.3 under Section 7 of the O.E.A. Act, 1951 in the name of Narayan Mishra Panigrahi (grandfather of the plaintiff), though admittedly his grandfather Narayan Mishra Panigrahi was not alive by the time of initiation of O.E.A. Case S.A. No.17 of 1997 Page 6 of 12 No.724 of 1965-66, as Narayan Mishra Panigrahi had expired in the year 1939. For which, settlement of the suit properties in O.E.A. Case No.724 of 1965-66 as per Ext.3 in favour of a dead person i.e. Narayan Mishra Panigrahi is non est in the eye of law. So, no interest in the suit properties was created in favour of the plaintiff and as such, the plaintiff has no interest in the suit properties. Therefore, the plaintiff is not entitled to get the decree against the defendants. As the plaintiff has admitted that, the defendants are staying in the suit properties since the time of their predecessor Nakula Behera i.e. since 1942 and the State being the owner of the suit properties has not taken any step to evict them, for which, the suit of the plaintiff is not maintainable under law.” 9. On being dissatisfied with the aforesaid judgment and decree i.e. dismissal of the suit of the plaintiff passed by the Trial Court, he (plaintiff) challenged the same by preferring the First Appeal vide T.A. No.18 of 1989 being the appellant against the defendants arraying them (defendants) as respondents. 10. After hearing from both the sides, the First Appellate Court dismissed that First Appeal vide T.A. No.18 of 1989 of the plaintiff concurring/accepting the findings and observations made by the Trial Court as per its judgment and decree dated 29.10.1996 and 08.11.1996 respectively. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide T.A. No.18 of 1989 of the plaintiff passed by the First Appellate Court, he (plaintiff) challenged the same by S.A. No.17 of 1997 Page 7 of 12 preferring this second appeal being the appellant against the defendants arraying them (defendants) as respondents. 12. This Second Appeal was admitted on formulation of the following substantial question of law i.e.:- Whether after vesting of interest in the Lakhraj property in the State, recording of the said land in the name of the Lakhrajdar as per Ext.3 creates a title? 13.
Legal Reasoning
I have already heard from the learned counsel for the appellant and the learned counsel for the respondents. 14. In order to assail the judgments and decrees passed by the Trial Court and First Appellate Court, the learned counsel for the appellant relied upon the ratio of a decision of Hon’ble Court in a case between Binayak Mohapatro and others Vrs. Jagilal Nayak and others reported in (1977) 09 OHC CK 0009. 15. It is the own case of the plaintiff that, “the name of the grandfather of the plaintiff was Narayan Mishra Panigrahi. The said Narayan Mishra Panigrahi expired in the year 1939. Narayan Mishra Panigrahi died leaving behind his three sons i.e. Krishnna Chandra Mishra, Purnna Chandra Mishra and Nilamani Mishra. Krishnna Chandra Mishra is the father of the plaintiff. Krishnna Chandra Mishra died in the year 1978 leaving behind his widow wife, the plaintiff along with his other sons. The suit properties vested in the State in the year 1964 free from all encumbrances. The suit properties were settled in the name of the Narayan Mishra Panigrahi (grandfather of the plaintiff, who had expired in the year 1939) in O.E.A. Case No.724 of 1965-66 w.e.f. 01.10.1964 under Section 7 of the O.E.A. Act, 1951 as per Ext.3. S.A. No.17 of 1997 Page 8 of 12 The father of the plaintiff i.e. Krishnna Chandra Mishra had executed a lease deed in the year 1942 in respect of the suit properties in favour of the predecessor of the defendants i.e. Nakula Behera and since 1942, Nakula Behera was residing over the suit properties. The suit properties had fallen in the share of the plaintiff as per the decree passed in the suit vide T.S. No.20 of 1968 between him, his mother, his brothers and others.” 16. As per Section 7 of the O.E.A. Act, 1951, the lands those were in Khas possession of the intermediaries at the time of vesting, the said properties can be settled in the name of the intermediary, but not in favour of any person other than the intermediary. 17. When, undisputedly by the time of vesting of the suit properties in the State in the year 1964, Narayan Mishra Panigrahi was not in mortal earth, as he had expired much prior to that i.e. in the year 1939, then it was obvious and natural that, by the time of initiation of O.E.A Case No.724 of 1965-66 under Section 7 of the O.E.A. Act, Narayan Mishra Panigrahi was not in Khas possession over the suit properties, as he was dead by then and the settlement of the suit properties in O.E.A. Case No.724 of 1965-66 under Section 7 of the O.E.A. Act according to the Section 7 of the O.E.A. Act as per Ext.3 in favour of a dead person i.e. Narayan Mishra Panigrahi (who was not in possession over the suit properties due to his death much prior to 1964) shall be deemed as non est in the eye of law. Because, as per law, no order of settlement like the suit properties can be made under Section 7 of the O.E.A. Act in favour S.A. No.17 of 1997 Page 9 of 12 of a dead person, who was not in actual possession over the suit properties on the date of settlement of the same in his name. For which, it is held that, the order of settlement of the suit properties made in O.E.A. Case No.724 of 1965-66 as per Ext.3 in favour of the grandfather of the plaintiff i.e. Narayan Mishra Panigrahi is illegal, void and non est in the eye of law. When it is held that, the order of settlement of the suit properties in the name of the grandfather of the plaintiff i.e. Narayan Mishra Panigrahi as per the O.E.A. Case No.724 of 1965-66 under Section 7 of the O.E.A. Act, 1951 is illegal/invalid/non est in the eye of law, then at this juncture, the said order of settlement passed in O.E.A. Case No.724 of 1965-66 in the name of a dead person i.e. in the name of grandfather of the plaintiff Narayan Mishra Panigrahi is to be ignored. On this aspect, the propositions of law has already been clarified by the Hon’ble Court and Apex Court in the ratio of the following decisions:- (i) In a case between Gurnam Singh (Dead) through LRs and others Vrs. Gurbachan Kaur (dead) by LRs. reported in (2017) 13 SCC 414, any decision in favour of and/or against dead person renders such decision nullity. (ii) In a case between Raniya Bai Vrs. Tekmani Rathore and others reported in 2023 Livelaw (MP) 64 that, any decree passed in favour of or against a dead person is in nullity, as it has been passed in favour of a dead person, for which, the same is nullity. (Para 10) 18. When, the order passed in O.E.A. Case No.724 of 1965-66 in favour of the grandfather of the plaintiff i.e. Narayan Mishra Panigrahi in Page 10 of 12 S.A. No.17 of 1997 respect of the settlement of the suit properties is ignored, then at this juncture, it is held that, the State is the owner of the suit properties. Because, due to vesting of the suit properties in the State free from all encumbrances, the State has become the owner as per the own saying of the plaintiff. For which, the decision relied upon by the appellant (plaintiff) indicated in Para No.14 of this judgment is not applicable to this appeal at hand on facts as discussed above. 19. When, there is no material in the record to show that, the plaintiff is in possession over the suit properties and when it is established that, the ownership of the suit properties lies with the State and when the plaintiff has filed the suit for eviction against the defendants on the basis of his ownership over the suit properties and when the plaintiff has failed to establish his ownership over the suit properties and when the plaintiff has not impleaded to the owner of the same i.e. State along with his mother and brothers as parties to the suit and when it is established from the materials in the records that, the defendants are residing on the suit properties since the time of their predecessor Nakula Behera i.e. since 1942 on the basis of the lease deed executed by the father of the plaintiff in favour of Nakula Behera, then at this juncture, it cannot be held that, the judgments and decrees passed by the Trial Court as well as First Appellate Court dismissing the suit of the plaintiff are unreasonable or S.A. No.17 of 1997 Page 11 of 12 improper in any manner. For which, the question of interfering with the same through this second appeal filed by the plaintiff does not arise. Therefore, there is no merit in the appeal of the appellant (plaintiff). The same must fail. 20. In result, the second appeal filed by the appellant (plaintiff) is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court and First Appellate Court in T.S. No.20 of 1983 and T.A. No.18 of 1989 respectively are confirmed. Orissa High Court, Cuttack. 16.04.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2025 14:10:41 S.A. No.17 of 1997 Page 12 of 12