The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 163 of 2015 An appeal under Section 100 Code of Civil Procedure. --------------- Narendra Kumar Sahoo ..… Appellant -Versus- Jhari Dalai and Others ..… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s. S. Swain, A. Mishra & P.K. Behera, Advocates For Respondents : M/s. P.K. Satapathy, P. Panda, B. Das, & P.K. Jena, Advocates (For R. Nos. 1 to 5) M/s. S.K. Patra & S. C. Panda, Advocates (For R. No.6) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28.03.2025 SASHIKANTA MISHRA, J. The plaintiff is the appellant against a reversing judgment. His suit for declaration of right, title, interest Page 1 of 20 and recovery of possession of the suit land was decreed by the trial court without granting the relief of recovery of possession. The appeal filed by the plaintiff against the refusal of the relief of the recovery of possession was dismissed by the 1st Appellate Court and the entire decree, declaring the title of the plaintiff was set aside exercising power under Order XLI Rule 33 of C.P.C. Said judgment and decree are impugned in the present Second Appeal. 2. For convenience, the parties are referred to as per their respective status before the court below. 3.
Legal Reasoning
The plaintiff’s case, briefly stated is that the suit properties originally belonged to Bimal Chandra Ghose and Jitendranath Ghose being recorded in their names in stitiban status. They sold the suit property to one Nityananda Grahachrya for legal necessity vide RSD dated 25.02.1980 and delivered possession. After death of Nityananda, his son mutated the suit property in his favour as per order passed by the Tahasildar, Jagatsinghpur in Mutation Case No.5111 of 2002. Nityananda had constructed a pucca house over the suit land and was residing therein with his family. Page 2 of 20 Subsequently, he went to Bhopal with his family to earn his livelihood. His son Susanta returned to the native village after the super cyclone of 1999 and resided in the suit house. A thatched dwelling house of defendant Nos.1 to 5 existed towards the eastern side of the pucca house of Nityananda, which was demolished in the super cyclone. On request by defendant No.1, Susanta permitted his family members to reside in the pucca building temporarily. The defendant Nos.1 to 5 constructed a thatched house on their land and started residing there after vacating the suit house. After death of Nityananda in 1999, Susanta started serving in a firm at Bhopal and resided there with his family members. In order to meet the expenses of his sister’s marriage, Susanta sold the suit land along with the building to the plaintiff vide RSD dated 06.10.2009 and delivered possession. The plaintiff mutated the land in his name as per order passed by the Tahasildar, Raghunathpur in Mutation Case No.120 of 2010. He thereafter left for Arunachal Pradesh where he was working. It is alleged that taking advantage of his absence, defendant Nos.1 to 5 forcibly entered into the Page 3 of 20 suit building. Moreover, defendant No.1 initiated a criminal case under Section 144 of Cr.P.C. against Susanta, who had no subsisting interest at that time. But the plaintiff came to know about the same and the fact of forcible possession of the building taken by defendant No.1. Due to intervention of village gentries, defendant No.1 agreed to vacate the suit land but on the ill advice of some mischievous mongers of the village, he did not. Hence, the suit. 4. Defendant Nos.1 to 5 contested the suit by filing their written statement, inter alia, pleading that the suit is bad for non-joinder of the brother, sister and mother of defendant No.6. Moreover, consolidation operation being in progress, the suit is hit under Sections 4(4) and 51 of the OCH & PFL Act. The title of the plaintiff and his vendor was also questioned. It was specifically pleaded that neither the plaintiff nor his vendor nor his vendor’s vendor was ever in possession. The nature of the land was ‘Bajyapti Madhaya Satwadhikari’. After abolition of the estate, the father of defendant No.1-Naran Dalei paid salami of Rs.10/- and got ‘Chirasthai Ista Murari Page 4 of 20 Patta’ for an area of Ac.0.04 decimals on 10.10.1950 by Bimal Charan Ghose in token of which an unregistered written patta was granted to him. Since then Naran Dalei possessed the suit property and constructed his dwelling house over it. After his death, his son Jhari and grandson are in peaceful possession. Naran had developed the suit land as homestead land and after him the defendants are in peaceful possession by paying rent regularly. It is further stated that neither Bimal Ghose nor his brother had executed the sale deed on 25.02.1980. Susanta Grahacharya sold the suit plot to the plaintiff on 06.10.2009 but no delivery of possession was given. The mutation done in the name of Susanta is illegal and does not create any title. Defendant No.6 appeared and filed his written statement supporting the claim of the plaintiff in toto. 5. On such rival pleadings, the trial court framed the following issues for determination:- 1. Is the suit maintainable? 2. Whether the plaintiff has got cause of action to file the suit ? Page 5 of 20 3. Whether the suit is barred by law of limitation ? 4. Whether the suit is bad for non-joinder of necessary parties ? 5. Whether the suit is barred under Section 4(4) o and Section 51 of OCH & PFL Act ? 6. Whether the plaintiff has got his right, title and interest in respect of the suit land ? 7. Whether the plaintiff is entitled to get the relief of recovery of possession in respect of the suit land ? 8. Whether the plaintiff is entitled to get any other relief ? 6. Taking up Issue No.4 for determination at the outset, the trial court found that the defendants had taken a vague plea regarding non-joinder of parties without giving the names of the so-called necessary parties. On Issue No.5, the trial Court found that no evidence was adduced to substantiate the plea of the defendants that consolidation operation was in progress in the suit village. Further, the parties did not press the issue at the time of hearing. On Issue Nos. 6 and 7, the trial court analyzed the oral and documentary evidence in detail and found that defendant Nos.1 to 5 could not Page 6 of 20 explain why they did not challenge the sale deed dated 25.02.1980 within three years of its execution. Further, the patta granted in favour of Naran Dalei purportedly by Bimal Charan Ghose is unregistered and the co-owner, Jitendranath Ghose had also not signed on it. As such, the defendants could not prove their claim of title. On the contrary, the plaintiff produced the registered sale deed and mutation ROR which proved his title. On such finding, the suit was decreed. 7. As already stated, the plaintiff carried the matter in appeal as the relief of recovery of possession was not granted. The 1st Appellate Court framed the following points for determination:- Is the suit maintainable ? i) ii) Whether the suit is bad for non-joinder of necessary parties ? iii) Whether the suit is barred under Section 4(4) and sections and sec. 51 of OCH & PFL Act ?” 8. Referring to the provision under Order XLI Rule 33 of CPC, the 1st Appellate Court held that it has got ample power to pass any decree or order and scrutinize all materials available on record to make any finding which Page 7 of 20 the trial court ought to have made, even if no cross objection or cross appeal had been filed. On such premises the 1st Appellate Court re-examined the oral and documentary evidence. It was held that the sale transaction under RSD dated 25.02.1980 related to Sabik settlement but the Tahasildar had mutated the land after preparation of Hal ROR. Such correction could not have been done by the Tahasildar, particularly, when Nityananda Grahacharya was dead. It was further held that the plaintiff had not impleaded the legal heirs of the original owners, Bimal Ghose and Jatindranath Ghose. As such, it was held that the suit was bad for non-joinder of necessary parties. Further examining the sale transaction, the 1st Appellate Court held that the Sub- Registrar, Raghunathpur was not validly proved to have been acting as the Registrar at the relevant time. It was however, held that the suit was not barred under Sections 4 (4) & 51 of the OCH & PFL Act as the village had been de-notified. The 1st Appellate Court further relied upon the rent receipts produced by the defendants to hold that the same proved their possession. Basically on such findings, Page 8 of 20 the appeal was dismissed and the decree was set aside by dismissing the suit. 9. Being further aggrieved, the plaintiff had filed the present appeal, which has been admitted on the following substantial questions of law: - (i) Whether the lower Court has erred in law by observing that the vendor of the plaintiff should be a necessary party and in his absence, suit is liable to the dismissed for non-joinder of necessary party ? (ii) Whether the lower Appellate Court has erred in law by not finding title in favour of the plaintiff when the learned trial Court has already found title in his favour basing on the Registered Sale Deed executed by the vendor of the plaintiff? 10.
Legal Reasoning
Heard Mr. S.K.Swain, learned counsel for the plaintiff-appellant, Mr. P.K. Satapathy, learned counsel for the defendant-respondents Nos. 1 to 5 and Mr. S.K.Patra, learned counsel appearing for the PLRs of original defendant-respondent No.6. 11. Mr. Sanjib Swain, learned counsel for the plaintiff-appellant assails the impugned judgment by submitting that the 1st Appellate Court committed gross error in enlarging the scope of the appeal by taking Page 9 of 20 recourse to the provision under Order XLI Rule 33 of CPC, which was completely unwarranted. Since the defendants had not filed any cross objection or cross appeal, there was no justification for the 1st Appellate Court to enter into the issues that had been decided by the trial court entirely basing on the evidence on record. On merits, Mr. Swain would argue that the defendants claimed title on the basis of a so-called patta (Exhibit-5), which is evidently a forged document. In any case, said document purports to convey title only in respect of Ac.0.04 decimals, whereas the suit property measures Ac.0.09 decimals. That apart, the document was executed by only one of the co-sharers of the joint property. On the question of non-joinder of necessary parties, Mr. Swain would argue that since the land stood recorded in the name of the plaintiff’s vendor, he was not required to implead his vendor’s vendors as he does not claim any relief against them. 12. Per contra, Mr. P.K. Satapathy would argue that the 1st Appellate Court being the last court of facts is empowered to examine all the issues for just decision of Page 10 of 20 the case. The relief of recovery of possession being based on title, the 1stAppellate Court rightly went into the question of source of title. Since the Tahasildar had no jurisdiction to record the land in the name of the plaintiff’s vendor the 1st Appellate Court rightly held the same to be a nullity. Under such circumstances, the plaintiff ought to have impleaded all the legal heirs of his vendor to maintain his claim for title. Mr. Satapathy further argues that the validity of the sale deeds dated 25.02.1980 and 06.10.2009 were also not proved adequately by the plaintiff. 13. Sri S.K. Patra, learned counsel appearing for the defendant-respondent No.6 supports the case of the plaintiff-appellant by submitting that the contesting defendants not having challenged the decree of the trial court independently or by filing cross objection/cross appeal, have no locus standi to question the same before the 1st Appellate Court as also before this Court. 14. As already stated, the appeal has been admitted on the substantial questions of law as noted above. However, both parties have argued extensively on the Page 11 of 20 power of the Appellate Court under Order XLI Rule 33 of CPC. This Court also finds that the 1st Appellate Court has invoked the power under the aforementioned provision to enter into all questions involved in the suit, even though the appeal was only against a portion of the decree and no cross appeal or cross objection was preferred by the contesting defendants. Reading of the judgment of the trial court would reveal that after considering the oral and documentary evidence, the trial court was satisfied as regards the flow of title from the original joint owners to the plaintiff through Nityananda Grahacharya. Such finding is based on consideration of the sale deed dated 25.02.1980 executed by the joint owners in favour of the Nityananda Grahacharya. Evidence on record also clearly reveals that his son Susanta having succeeded to the property, sold the same to the plaintiff through sale deed dated 06.10.2009. It has been argued that Nityananda died leaving behind his son Susanta (defendant No.6), his widow, Kabita and daughter, Smruti but they were not impleaded as a parties. If such is the case, it does not stand to reason as to why defendant Nos.1 to 5 did not Page 12 of 20 challenge the sale deed of the year 2009 within the stipulated period. It is not their case that they were not aware of the sale deed and came to know about it only for the first time after filing of the suit by the plaintiff. On the contrary, they themselves set up a claim of title basing on a ‘Chirasthai Ista Murari Patta’ purportedly executed by Bimal Charan Ghose on 10.10.1950 in favour of their predecessor-in-interest Naran Dalei. This stand contradicts their own plea that the land belonged to Bimal Chandra Ghose and Jatindranath Ghose jointly but the latter had not signed on the document. That apart, as pointed out by Mr. Swain and rightly observed by the trial court in the impugned judgment, there is tell-tale incongruity in the document itself inasmuch as the name of ‘Bimal Chandra Ghose’ is mentioned as ‘Bimal Chandra Gose’. Moreover, said document though purports to create a permanent lease, has not been registered. Therefore, as between the claim of the plaintiff and the defendant Nos. 1 to 5, the trial Court found, and rightly so, that the former’s claim is more acceptable and valid. The Page 13 of 20 presumption attached to a registered instrument was not successfully rebutted by the contesting defendants at all. 15. Having held thus, This Court would now proceed to consider the justifiability of the 1st Appellate Court in expanding the scope of the appeal by invoking the provision under Order XLI Rule 33 of CPC. For reference, the provision is quoted herein below:- exercised by “33. Power of Court of Appeal-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.” 16. True, power is conferred on the Appellate Court to reopen all the issues but then, it is well settled that such right is not unrestricted but is to be exercised only under compelling circumstances. In the case of Page 14 of 20 Choudhury Sahu (Dead) by Lrs. v. State of Bihar1, the Supreme Court held as follows:- “(2) The object of Rule 33 is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this Rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule the court should not lose sight of the other provisions of the Code itself nor provisions of other law, viz. the law of limitation or the law of court fees etc.” 17. Referring to Choudhury Sahu (supra), this Court in the case of Kishore Chandra Pati v. The Orissa Road Transport Co. Ltd. and Others,2 held as follows:- “When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree to invoke the powers of the Appellate Court under Order 41 Rule 33 to pass 1 AIR 1982 SC 98 21989 (I) OLR-23 Page 15 of 20 decree in favour of the party not appearing so as to give the latter a benefit which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the Appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so would result in making inconsistent, contradictory or unworkable orders.” xxx xxx xxx xxx The main object of the aforesaid rule is to enable the Appellate Court to do complete justice between the parties, same question in the same suit. The Appellate Court has been conferred a discretionary power to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding that the appeal is as to a part only of the decree or that the party is whose favour the power is proposed to be exercised has not filed any appeal or any cross- objection and the discretion so conferred is quite wide. But the said discretion should not be exercised in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection and further the discretion has to be exercised with care and caution and cannot be utilized to enlarge the scope of the appeal. It is thus appatent that when the Appellate Court finds that inconsistant, contradictory or unworkable orders would be the ultimate result if the decree is not passed in favour of non-appealing respondents, it is then the Appellate Court would exercise its power under Order 41 Rule 33.” 18. As already stated, this is a case where the defendant Nos. 1 to 5 chose not to challenge the decree of the trial court in appeal. They also did not file any cross Page 16 of 20 objection or cross appeal. After going through the judgment of the trial court, this Court does not find the same to be one which necessitates exercise of power under Order XLI Rule 33 of CPC by the Appellate Court so as to prevent an inconsistent, contradictory or unworkable order from being passed. This Court is therefore, of the considered view that the 1st Appellate Court committed manifest illegality in reopening all the issues for determination when the appeal was only against a part of the decree. 19. This Court has already held that the defendant Nos.1 to 5 not having challenged the RSD of the year 2009 as also having failed in their attempt to establish title in their favour, cannot question the competence of defendant No.6 alone to alienate the property. Under such circumstances, non-impletion of the other co-owners, if any, cannot be treated as fatal to the suit. 20. As regards the competence of the Tahasildar to mutate the property after publication of the Hal ROR, the same would be of no consequence as preparation of ROR does not convey title whereas the sale deed does. This Page 17 of 20 Court finds nothing wrong in the finding of fact arrived at by the trial court to accept the two sale deeds (1950 and 2009) as valid. So, even if the order of the Tahasildar allowing mutation in favour of the plaintiff’s vendor is brushed aside, the same would have no effect on the flow of title from the plaintiff’s vendor’s to the plaintiff. 21. As regards the relief of recovery of possession, undoubtedly, the trial court has not specifically refused the same but then it is trite that a relief not specifically granted by the Court is deemed to have been refused. Reading of the impugned judgment of the trial court reveals that it was fully satisfied as regards the title of the plaintiff and also took note of the cause of action put forth by the plaintiff to the effect that on 25.09.2009, the defendants vacated the suit land and the plaintiff took possession on 06.10.2009 and again on 20.03.2010, the defendants in absence of the plaintiff forcibly entered into the suit land. The trial court also took note of the cause of action put forth by the plaintiff that as the defendants did into vacate the building, the plaintiff was constrained to file the suit. Having held so, granting the relief of recovery Page 18 of 20 of possession was a natural corollary, which for reasons best known to the trial court, it did not. To reiterate, the plaintiff having proved his right, title and interest over the property is entitled to possess the same lawfully. On the contrary, the defendants having utterly failed to prove any manner of right, title or interest in the property, their possession has to be treated as unlawful. Therefore, the trial Court ought to have granted the relief of recovery of possession sought by the plaintiff. The 1st Appellate Court having decided the appeal on other premises has not considered the question of grant of the above relief at all. 22. From a conspectus of analysis of facts, law and contentions raised, this Court is of the considered view that the judgment and decree passed by the 1st Appellate Court cannot be sustained in the eye of law. The substantial questions of law framed are therefore answered by holding that the 1st Appellate Court erred in law by holding that the vendor of the plaintiff should be necessary party and in his absence the suit is liable to be dismissed. Further, the lower appellate Court has erred in Page 19 of 20 law by not finding title in favour of the plaintiff, basing on the RSD executed by his vendor. 23. For the foregoing reasons therefore, the appeal is allowed. The impugned judgment and decree passed by the 1st Appellate Court is set aside. The judgment and decree passed by the trial court is modified only to the extent of granting the relief of recovery of possession in favour of the plaintiff by directing the defendants to deliver vacant possession of the suit property within three months, failing which it shall be open to the plaintiff take recourse to law. ……..………………….. Sashikanta Mishra, Judge High Court of Orissa, Cuttack The 28th of March, 2025/B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Apr-2025 10:19:19 Page 20 of 20