The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.156 of 2019 the In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing judgment and decree dated 19.02.2019 & 28.02.2019 respectively passed by the learned Additional District Judge, Kamakhyanagar in R.F.A. No.22 of 2017 setting aside the judgment and decree dated 10.05.2017 & 18.05.2017 respectively passed by the learned Senior Civil Judge, Kamakshanagar in C.S. No.98 of 2011. ---- Surendranath Samal …. Appellant Narottam Sahoo & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s. H. N. Mohapatra A. Samantaray, A. Nayak, B.B. Padhi Advocates For Respondents - CORAM:
Legal Reasoning
MR. JUSTICE D.DASH DATE OF HEARING :01.12.2023: DATE OF JUDGMENT: 19.12.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 19.02.2019 & 28.02.2019 respectively passed by the learned Additional District Judge, Kamakhyanagar in R.F.A. No.22 of 2017. R.S.A. No.156 of 2019 Page 1 of 5 {{ 2 }} The Respondent No.1 as the Plaintiff had filed Civil Suit No.98 of 2011 in the Court of Senior Civil Judge, Kamakhyanagar arraigning the Appellant and Respondent No.2 & 3 as the Defendants seeking the relief of partition of the land of Plot No.388 under hal khata no.200 of Mouza Tipilei in order to carve out his land of Ac 0.240 which he had purchased. In that this Appellant being the Defendant No.2 had filed a counter claim for declaration of his right, title and interest over the land under plot no.388/1726 measuring an area of Ac0.16 under mutated Khata No.231/2136 and recovery of possession as also permanent injunction. The Trial Court decreed the suit and dismissed the counter claim. This Appellant thus being under the sufferance of the decree passed in the suit filed by the Respondent No.1 as the Plaintiff and being aggrieved by the dismissal of his counter claim had carried the Appeal under section 96 of the Code. The First Appellate Court has dismissed the suit as well as the counter claim. Hence, the present Second Appeal is at the instance of the Appellant, who was the Defendant No.2 before the Trial Court in questioning the dismissal of his counter claim. 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. Plaintiff’s case is that he is a bona fide purchaser for value of the land measuring AC 0.24 decimal from its original owner and possessor namely, Rathi Nayak. It is further stated that he had purchased the said land under two registered sale deeds and had taken delivery of possession. Rathi had died leaving behind his son Kishori, who is survived by his widow Siromani, the Defendant No.1. The brother of Rathi was unmarried and unheard of for Page 2 of 5 R.S.A. No.156 of 2019 {{ 3 }} last three decades and as such his whereabout was not known to the parties as well as the villagers. The Defendant No.2 is the second purchaser whereas Defendant No.3 is the third purchaser of different portions from out of the total land originally belonging to Rathi. The Defendant No.3 has purchased the portion of land from the Defendant No.1 Siromani whereas Plaintiff- Defendant No.2 had purchased from Rathi. The alienation made by Defendant No.1 was without the knowledge of the Plaintiff. The Plaintiff claims to be in possession of the property strictly as per his purchase and says to have made improvement upon the land which has remained in his possession. Since the Defendant No.3 made attempt to measure the land and dug foundation on the eastern side of the land of the Plaintiff and the Defendant No.2 advanced an illegal claim over the portion of the land of the Plaintiff, the suit came to be filed. 4. The Defendant No.2 with his W.S had filed counter claim for declaration of his right, title, interest over the land and plot no.388/1726 measuring 16 decimal and sought for recovery of the possession of the same from the Plaintiff. The Defendant No.2 claims to have purchased the said land from Rathi Nayak by registered sale deed dated 28.08.2002 which is adjacent to the land purchased by the Plaintiff. 5. Mr. H. N. Mohapatra, learned counsel for the Appellant (Defendant No.2) submitted that the dismissal of the counter claim by the First Appellate Court on the ground of lack of cause of action is untenable when it has found the Plaintiff to have not disputed the execution of the sale deed Ext.B standing in favour of Defendant No.1. He further submitted that the First Appellate Court having held the Defendant No.2 and 3 to be entitled to get their respective purchased land, the counter claim lodged by Defendant R.S.A. No.156 of 2019 Page 3 of 5 {{ 4 }} No.2 ought not to have been dismissed. He, therefore urged for admission of this Appeal to answer the above as the substantial questions of law. 6. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing. 7. The Defendant No.2 when asserts his claim over the land measuring Ac 0.16 decimals by virtue of his purchase under sale deed Ext.B, said purchase of that extent of land is not disputed by the Plaintiff. It is not denied by the Plaintiff that Defendant No.2 has title over Ac 0.16 decimal. The Plaintiff-Defendant No.2 have purchased their land from suit plot no.388. When the Plaintiff has purchased lands under two sale deeds Ext.3 and Ext.8, the Defendant No.2 has purchased under sale deed Ext.B. The dispute is with regard to the specific portion of the land which the Plaintiff, Defendant No.2 and Defendant No.3 would be having on the strength of their respective purchases and for that reason, the Plaintiff had filed the suit. The suit has been dismissed, and then in the counter claim, the Defendant No.2 is seeking declaration of his right, title and interest over the land which he has described in the schedule which he claims to have purchased. It is the settled position of law that a counter claim need not be the action of the same nature as the original action but it has to be analogus thereto. When in the facts and circumstances, the suit of the Plaintiff has been dismissed holding that the Plaintiff had no cause of action to file the suit for partition as there is no dispute with regard to the title of the parties over their purchased land, the First Appellate Court in my considered view did commit no wrong in dismissing the counter claim seeking the reliefs as prayed for. R.S.A. No.156 of 2019 Page 4 of 5 {{ 5 }} In view of the above matter, the submission of the learned counsel for the Appellant fails and it is found that there surfaces no such substantial questions of law for being answered meriting admission of this appeal. 8.
Decision
In the result, the Appeal stands dismissed. There shall however, be no order as to cost. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 22-Dec-2023 12:46:17 R.S.A. No.156 of 2019 Page 5 of 5