The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 142 of 2009 [An appeal under Section 100 of the Code of Civil Procedure, 1908 from the judgment and decree dated 20.01.2009 and 04.02.2009 respectively passed by learned 1st Additional District Judge, Cuttack in R.F.A. No.155 of 2006 confirming the judgment and decree dated 22.11.2006 and 30.11.2006 passed by learned Civil Judge (Jr. Division), Cuttack in T.S. No.67 of 1997] --------------- AFR Gobinda Chandra Samal and others ...… Appellants -Versus- Fakir Charan Samal @ Fakir Samal and another ….. Respondents Advocate(s) appeared in this case :- ________________________________________________________ For Appellants : M/s. D.P. Mohanty, R.K. Nayak, B. Das, M. Pal, P.K. Swain & T.K. Mohanty, Advocates For Respondents : Mr. B.B. Routray, Advocate __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 29th July, 2025 SASHIKANTA MISHRA, J.
Legal Reasoning
This is a plaintiffs’ appeal against a confirming judgment. The suit of the plaintiffs praying for recovery of Page 1 of 11 possession of the suit land and eviction of the defendants therefrom was dismissed by the trial Court and confirmed by the First Appellate Court. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 3. The case of the plaintiffs is that the suit land was exclusively recorded in the name of one Banchu Samal and after his death, it devolved upon them and they are in possession. On the other hand, the defendants are complete strangers to the family of the plaintiffs. As the house of the defendants was damaged due to heavy rain in the year 1995, they requested the plaintiffs to occupy a portion of the dwelling house over the suit land. The plaintiffs permitted the defendants to do so, on their promise of vacating the house after constructing their own house. However, the defendants went back on their promise despite repeated requests by the plaintiffs. They, on the other hand sent lawyer’s notice on 23.09.1996 to the plaintiffs asking them to execute a sale deed in respect of the suit house purportedly as per a contract signed by the Page 2 of 11 parties on receipt of consideration of Rs.2,000/-. The plaintiffs denied in writing about any such contract of sale and on the contrary, they sent a lawyer’s notice on 12.12.1996 asking the defendants to vacate the suit property, which the defendants did not comply. Hence the suit. 4. The defendants contested the suit by filing written statement furnishing a different genealogy. They claim to be the successors of one of the sons of the common ancestor, Bidei. They also challenged the description of the suit land as non-specific. On facts, the defendants denied the plaint averments by stating that about 60 years back the sons of the common ancestor, Bidei had come to the suit village in search of work and for beating of drums to maintain their family. While they were staying in a temporary shed, the ex-landlord, Hari Mohanty, out of sympathy inducted Banchu and grandfather of plaintiff-appellants and Sanei, the grandfather of defendants as tenants over Ac.0.04 decs. and Ac.0.03 decs. out of Ac.60 decs. in Sabik Plot No. 127 Page 3 of 11 under Khata No. 65 for their residential purpose with
Legal Reasoning
condition of beating drums before their family deity, Shri Gopal Jew Thakur during family festivals. It is further claimed that Sanei and Bhramar constructed their houses separately over said Ac.0.03 decs. land and after death of Sanei, Bhramar and other defendants are in peaceful and continuous possession having acquired occupancy rayati right. Banchu, being the eldest member of the family was requested to look after the suit land during the last settlement operation but the land was recorded in his name in the ROR of the year 1974. However, despite such wrong recording they are owners and in possession of the suit land for which the plaintiffs cannot claim their title over the same. It was also settled between the parties in presence of Gagan Bihari Mohanty that the defendant-respondents would continue to reside over the suit house as put down in writing on 01.04.1974. Further, a meeting was convened in the village and a faisalanama was executed on 10.08.1996. Alternatively, the defendants claimed to have perfected their title by adverse possession. Page 4 of 11 5. Basing on the rival pleadings, the trial court framed the following issues for determination. 1. Have the plaintiffs any cause of action to file the present suit? 2. Is the suit maintainable in the present form? 3. Is the suit barred by limitation? 4. Is the suit bad for non-joinder and mis-joinder of parties? 5. Is the description of the suit land is indistinct and not specific? 6. Are the plaintiffs have got right, title, interest over the suit premises? 7. If the defendants occupied the suit land and house standing thereon with permission of the plaintiffs since the year of 1995 or they are occupying the same as original inducted tenants as claimed in the written statement ? 8. If the defendants have got any tenancy right over the suit land? the 9. defendants from the suit land and house standing thereon? 10. To what relief if any the plaintiffs are entitled to?‖ the plaintiffs are entitled to evict If 6. Taking up issue Nos. 5, 6, 7 and 8 together for consideration, the trial Court, after a lengthy discussion on the oral and documentary evidence and the contentions raised by the parties, ultimately found that the description of the suit land is not specific and the same, as described in the plaint schedule, is also not identifiable. Having held so, the trial court further held that the source of acquisition of title of Banchu, the ancestor of the plaintiffs, was not proved and as such, their plea of giving permissive Page 5 of 11 possession to the defendants was held to be not proved. However, the possession of the defendants was proved by admission. On the above findings basically, the suit was dismissed. 7. The plaintiffs carried the matter in appeal. The First Appellate Court after taking note of the pleadings and evidence first took up for consideration whether the suit land was properly described or not. In view of the nature of the suit, the First Appellate Court was of the view that the suit land was required to be specifically described for being easily identifiable as per the provisions of Order VII, Rule 3 of CPC. Further, referring to the settled position of law it was held that the suit property as described in the plaint schedule was not properly described and therefore, the suit was liable to be failed. The appeal was thus, dismissed with the further finding that the observations of the trial court as regards the respective title and possession of either of the parties would not operate as res-judicata as between the parties in any future litigation. Page 6 of 11 8. Being aggrieved, the plaintiffs have preferred this appeal, which was admitted on the following substantial question of law. ―Whether the entire suit plot was constituting an area of Ac.0.07 decimals and the case of the plaintiff was, out of the said Ac. 0.07 decimals, he is in possession of Ac.0.04 decimals, where his residential house stands, and the balance Ad 0.03 decimals are in possession of the defendants, the learned courts below have committed an error in holding that the suit land is not identifiable merely because, the plaint schedule does not disclose any boundary.‖ 9. Heard Mr. D.P. Mohanty, learned counsel for the plaintiff-appellants and Mr. B.B. Routray, learned counsel appearing for the defendant-respondents. 10. Mr. Mohanty would argue that the finding of the trial court that the suit was bad for mis-description of the suit property is an error of record, inasmuch as the same was properly described in the plaint schedule by referring to the Khata number and Plot number and all other particulars. The First Appellate Court also erroneously confirmed such finding without any valid reason. Mr. Mohanty would further argue that the trial court erroneously held the property in question to be joint family property completely ignoring the ROR marked Ext.1, which Page 7 of 11 in turn was prepared on the basis of the Munsarim Mistake No. 30 dated 04.02.63 (Ext.D). The finding that the plaintiffs had no title over the suit property is therefore, perverse. 11. Mr. Routray on the other hand would argue that it is the settled position of law that improper description of the suit property is a fundamental defect as no enforceable decree can be passed. Having held so, the trial court was wrong in entering into the merits of the case. The First Appellate Court therefore, rightly brushed aside such findings by holding that the same would not act as res- judicata between the parties in future. 12. Reference to the plaint schedule reveals that the suit land has been described as follows: ―Dist. Cuttack, Thana – Cuttack Sadar, Thana No. 82, Mouza- Sisua, Khata No. 303, Plot No.123/1543, Gharabari an area of Ac.0.03 decimals, out of Ac.0.07 decimals and house standing thereon being occupied by the defendants of the plaintiffs.‖ 13. Thus, the dispute is confined to only Ac.0.03 decs. out of Ac.0.07 decs. and house standing thereon. As such, it would be difficult to pinpoint as to which portion of the suit plot the dispute relates to. It must be kept in mind Page 8 of 11 that the suit was filed not only for recovery of possession of the suit land as also the house standing thereon but also for eviction of the defendants therefrom. So, it becomes imperative for the plaintiffs to describe the suit land by providing the exact boundaries to show the specific portion of the suit land which forms part of the entire land measuring Ac. 0.07 dec. Not only that no boundaries were provided but also no sketch map was appended to the plaint. Both the trial court as well as the First Appellate Court have concurrently held that the suit land was not properly described. The First Appellate Court has also referred to the provisions of Order VII, Rule 3 of CPC which is reproduced below. the suit ―3. Where is the subject-matter of immovable property.—Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.‖ 14. Thus, the requirement of the statute is for the plaintiffs to provide such description of the property as would be sufficient to identify it. It is the settled position of law that mis-description of suit property in the plaint is a Page 9 of 11 defect that goes to the root of the matter as it would not be possible for the Court to pass an enforceable decree. Reference in this regard may be had to the judgment of this Court in Dharanidhar Jena and Ors. vs. Dharanidhar Behera and Ors .1 15. The first appellate Court has referred to the plaint, the relevant statutory provision as also settled position of law to hold that the suit land was not properly described and therefore, the suit ought to fail. Nothing has been demonstrated before this Court as to how the above findings of the trial court as well as the First Appellate Court are wrong so as to persuade this Court to interfere. 16. Another important aspect is, the trial Court after holding the suit property to be improperly described, unnecessarily forayed into the merits of the case regarding title of the parties. Since the defect of mis-description is a fundamental defect rendering to suit not maintainable by itself, the trial court must be held to have committed an error in entering into the merits of the case after its finding regarding mis-description of the property. The First 1 139(2025)CLT802 Page 10 of 11 Appellate Court therefore, rightly refrained from going into the merits of the case and held that the observations of the trial court regarding title and possession of either of the parties would not operate as res-judicata between them in any future litigation. The above, in the considered view of this Court is the correct approach. 17. In view of the foregoing narration, the substantial question of law framed is answered accordingly. 18. In the result, the appeal fails and is therefore,
Decision
dismissed. There shall be no order as to costs. ………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 29th July, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jul-2025 11:08:47 Page 11 of 11