The High Court
Case Details
{{ 1 }} IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.447 of 2015 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Jogendra Patel Fanibhusan Patel -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - Mr. S.S.Das, Sr.Advocate. - Mr.P.K.Sutar, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :23.11.2023 :: Date of Judgment :21.12.2023 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2.
Legal Reasoning
The Appellant in this Second Appeal was the sole plaintiff in the suit vide C.S. No.20 of 2012 and he was the appellant in the First Appeal vide R.F.A. No.06 of 2014. The Respondent in this Second Appeal was the defendant in the suit vide C.S. No.20 of 2012 and he was the Respondent in the First Appeal vide R.F.A. No.06 of 2014. The suit of the plaintiff vide C.S. No.20 of 2012 was a suit for declaration of title and permanent injunction. R.S.A. No.447 of 2015 Page 1 of 11 {{ 2 }} 3. As per the averments made by the plaintiff in his plaint, the properties described in Schedule-A of the plaint vide Khata No.172 Plot No.5101 Ac.0.53 decimals & Plot No.5034/6116 Ac.0.06 decimals in total Ac0.59 decimals in mouza Darlipali under the jurisdiction of Bhasma police station in the District of Sundargarh has been recorded in his name i.e. in the name of plaintiff and he (plaintiff) had/has been possessing the same being the exclusive owner thereof on payment of land revenue to the Government. The defendant has no manner of right, title, interest and possession over the same. Though, the defendant has no manner of right, title, interest and possession over the suit properties, but, when, on dated 04.09.2012, he (defendant) threatened him (plaintiff) to evict him (plaintiff) forcibly from the suit properties, then, he (plaintiff) approached the civil court by filing the suit vide C.S. No.20 of 2012 against the defendant praying for declaration of his title over the suit properties and to injunct the defendant permanently from interfering into his peaceful possession over the suit properties, inalternative for recovery of possession, if he (plaintiff) is found to be dispossessed forcibly from the suit properties by the defendant during the pendency of the suit. 4. Having been noticed from the Court in C.S. No.20 of 2012 filed by the plaintiff, the defendant contested the suit of the plaintiff by filing his written statement denying the averments made by the plaintiff in his plaint by stating that, the suit properties belongs to him (defendant) and the said properties have been recorded in his name i.e. in the name of the defendant. The name of his father is Jogendra Patel. In sabik settlement, the suit properties were recorded in the name of his father i.e. Jogendra Patel. The suit properties have never been transferred either by his father R.S.A. No.447 of 2015 Page 2 of 11 {{ 3 }} or by him (defendant) to the plaintiff at any point of time in any manner. The suit properties are under his possession since the time of his father. As the name of the plaintiff is similar with the name of his father and as the name of the plaintiff is Jogendra Patel and the father’s name of the defendant is Jogendra Patel, for which, by taking the advantage of the similarity of the name of plaintiff with the father’s name of the defendant, he (plaintiff) had managed to record the suit properties wrongly in his name in the Hal settlement. When, such fact about the wrong recording of the suit properties in the name of the plaintiff came to the knowledge of the defendant, he (defendant) filed a mutation case before the local Tahasildar for deletion of the name of the plaintiff and for recording of the same in his name i.e. in the name of the defendant. Then after making due enquiry, the Tahasildar mutated the suit properties into his name i.e. into the name of the defendant and prepared the mutated R.o.R. of the suit properties in the name of the defendant after deleting the name of the plaintiff. For which, the plaintiff has no right, title and interest in the suit properties. Therefore, the suit of the plaintiff is liable to be dismissed. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six (6) numbers of issues were framed by the Trial Court and the said issues are:- Issues (i) Whether the suit is maintainable? (ii) Whether there is any cause of action to bring this suit? (iii) Whether the plaintiff has right, title and interest over the suit schedule property? (iv) Whether the plaintiff is entitled to get permanent injunction against the defendant with respect to the suit schedule land? (v) Whether the suit is bad for non-joinder of necessary parties? R.S.A. No.447 of 2015 Page 3 of 11 {{ 4 }} (vi) Whether the plaintiff is entitled to get any other reliefs as prayed for? 6. In order to substantiate the aforesaid reliefs sought for by the plaintiff, he (plaintiff) examined himself as P.W.1 and relied upon two documents vide Exts.1 & 2. 7. On the contrary, the defendant examined four witnesses from his side including him as D.W.1 and exhibited series of documents vide Exts.A to A/19 to C on his behalf. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available on Record, the Trial Court dismissed the suit of the plaintiff vide C.S. No.20 of 2012 on contest against the defendant vide its judgment and decree dated 13.01.2014 and 18.01.2014 respectively answering only one issue i.e. issue No.V out of six issues assigning the sole reason that, as during trial of the suit, the plaintiff as well as defendant deposed that, the suit scheduled land has been acquired by the Government i.e. N.T.P.C., for which, in the suit at hand, Government is a necessary party, but the Government has not been made as a party, for which, the suit is bad for non-joinder of necessary party i.e. the Government. For which, the suit of the plaintiff is not maintainable and for such reason, by answering the issue No.V only, the Trial Court dismissed the suit of the plaintiff on contest against the defendant. 9. On being dissatisfied with the aforesaid judgment and decree of dismissal of the suit of the plaintiff vide C.S. No.20 o 2012, he (plaintiff) challenged the same by preferring the First Appeal vide R.F.A. No.06 of 2014 being the appellant against the defendant by arraying him (defendant) as respondent. R.S.A. No.447 of 2015 Page 4 of 11 {{ 5 }} 10. After hearing from both the sides, the First Appellate Court dismissed the First Appeal of the plaintiff vide R.F.A. No.06 of 2014 concurring the findings and observations made by the Trial Court in C.S. No.20 of 2012 only in respect of issue No.V without touching/answering any other issues like the Trial Court vide its judgment and decree dated 14.08.2015 and 27.08.2015 respectively. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide R.F.A. No.06 of 2014 of the plaintiff, he (plaintiff) challenged the same by preferring this Second Appeal being the appellant against the defendant by arraying him (defendant) as Respondent. 12. This Second Appeal has been admitted on formulation of the following substantial question of law i.e.:- (i) Whether the Courts below are correct in their approach by dismissing the suit as well as appeal on the ground that, the suit is defeated by non-joinder of necessary parties, when the defendant has not filed written statement raising such defence as to non- joinder of necessary parties? 13. 14.
Legal Reasoning
I have already heard from the learned counsels of both the sides. In order to assail the impugned judgments and decrees of the Trial Court and as well as First Appellate Court, the learned counsel for the Appellant (plaintiff) relied upon the following decisions:- AIR 2001 (S.C.) 2171—Madhukar and others Vrs. (i) Sangram and others 2011 (II) OLR (S.C.) 90—B.M.Narayana Gowda Vrs. (ii) Santhamma and another 2015 (I) CLR 752—Rama Chandra Patra & others Vrs. (iii) Raghunath Jew and others R.S.A. No.447 of 2015 Page 5 of 11 {{ 6 }} 15. On the contrary, in support of the impugned judgments and decrees of the Trial Court and First Appellate Court, the learned counsel for the Respondent (defendant) relied upon the following decision:- 2022 Live Law (S.C.) 802—Moreshar Yadaorao (i) Mahajan Vrs. Vyankatesh Sitaram Bhedi and others. 16. On reference to the judgments and decrees of the Trial Court and First Appellate Court passed in C.S. No.20 of 2012 and R.F.A. No.06 of 2014 respectively, it was the undisputed arguments of the learned counsels of both the sides that, the Trial Court has dismissed the suit of the plaintiff vide C.S. No.20 of 2012 on contest against the defendant answering only one issue i.e. issue No.V without answering other five issues holding that, the suit of the plaintiff is not maintainable without the impletion of Government as party and the First Appellate Court has also dismissed the First Appeal accepting the above findings and observations made by the Trial Court in respect of only one issue i.e. issue No.V without touching/discussing/answering the other five issues. 17. It is the mandatory directions of Order 20 Rule 5 of the CPC to all the Trial Courts to decide all the issues at the time of passing judgments and decrees in the suits instead of disposing of the suits answering any of the technical issue. 18. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) AIR 1973 (Patna) 389—Ram Padarath Singh Vrs. Baidyanath Prasad & other—Paragraph 16—The Trial Court should pronounce its opinion on all issues so as to avoid a remand, if the Appellate Court differs from the Trial Court. (ii) AIR 1959 (Orissa) 132, 25 (1959) CLT 119— Sashimukhi Dasiani Vrs. Brundaban Das and others—Paragraph 21—CPC, R.S.A. No.447 of 2015 Page 6 of 11 {{ 7 }} 1908—Order 20 Rule 5—Finding on all issues—Duty of Trial Court— It is the duty of the Trial Judge to record a finding on all the issues though according to his decision on some of the issues the findings on other issues might not be necessary for disposal of the case. (iii) AIR 1955 (Hyderabad) 268—Ahmed Ali and others Vrs. Shaik Ahme & AIR 1953 (Travamcore-cochin) 118—Kesavan Janardhan Plappalli and others Vrs. Narayanan Janardhanan Plappalli and other—CPC, 1908—Order 20 Rule 5—It is the duty of the Trial Courts to give their findings on all issues raised between the parties in order to avoid remands. (iv) 2016 (I) Civil Court Case 61 (Uttarakhand)—Kanti Ballabh Satyawali Vrs. Rewadhar Satyawali & others—CPC, 1908-Order 20 Rule 5—Issues leading evidence—Trial Court to give its decision on all issues not withstanding that, suit may be decided on the basis of one technical issues. framed—Parties (v) AIR 1985 (S.C.) 736—M/s. Fomento Resorts and Hotels Ltd. Vrs. Gustavo Ranato Da Cruz Pinto and others— Paragraph 27—CPC, 1908—Order 20 Rule 5—Judgments should be on all points not on single point— When dealing with any matter dispose of all the points and not merely rests its decision on one single point. 19. In view of the clarified propositions of law enunciated in the ratio of the above decisions of the Hon’ble Courts and Apex Court, it is the lawful duty of the Trial Court to pass the judgment and decree in a suit by recording its finding on all the issues instead of disposing of the suit recording its finding only on one issue or some of the issues. 20. Here in this suit at hand, when the Trial Court has passed the judgment and decree in the suit of the plaintiff vide C.S. No.20 of 2012 dismissing that suit by recording its finding only on one issue i.e. issue No.V without answering other five issues, then at this juncture, the judgment and decree of the Trial Court cannot be sustainable under law. R.S.A. No.447 of 2015 Page 7 of 11 {{ 8 }} 21. Now it will be seen, when like this suit at hand, the Trial Court passes the judgment and decree in the suit by recording its finding only on one issue, then in an Appeal against the same like the First Appellate Court of this matter vide R.F.A. No.06 of 2014, what should have been the duties of the First Appellate Court. 22. The powers, duties and obligations of the First Appellate Court have already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- 2023 (3) CCC 87 (Rajsthan)—Umar Khan (Deceased) Vrs. (i) Sumer Khan (Now deceased)—Paragraphs 10 and 13.9—CPC, 1908—Section 96—First Appeal—Continuation of Suit—First Appeal is always treated as continuation of Civil Suit— Virtually, First Appeal is a re-hearing of civil suit and whole case is open for reconsideration. (ii) 2021 (3) CCC 212 (S.C.)—Manjula and others Vrs. Shyamsundar and others—CPC, 1908—Section 96—First Appeal—Scope and Ambit—First Appellate Court’s jurisdiction involves rehearing of appeal on questions of law as well as fact— First Appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re- consideration. (iii) 113 (2012) CLT 373—Smt. Sushila Devi Kedia & Ors. Vrs. Gyanendra Kumar Ray & Others—Paragraph-4—CPC, 1908— Section 96—The First Appellate Court being the final court of fact is to analyze all the materials available on record and appreciate the same. (iv) 2012 (I) CLR 177— Chakradhar Bhutia (Dead) by his LRs. Harshamani Bhutia and others—Paragraph-4—CPC, 1908— Section 96 read with Order 20 Rule 5—Duty of the First Appellate Court—The First Appeal is a valuable right and the parties have a right to be heard both on questions of law and facts and the judgment in the First Appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (v) AIR 2001 (S.C.) 2171—Madhukar & others Vrs. Sangram & others—Paragraphs 5, 7 & 8—CPC, 1908—Section 97—First R.S.A. No.447 of 2015 Page 8 of 11 {{ 9 }} Appeal is a valuable right—It is duty of Court to deal with all issues and evidence led by parties before recording finding. (vi) 2011 (II) OLR (S.C.) 90—B.M. Narayana Gowda Vrs. Shanthamma (D) by LRs. and another—CPC, 1908—Section 96—First Appeal—First Appeal is a valuable right of the Appellant and therein all questions of fact and law decided by Trial Court are open for reconsideration. (vii) 2015 (I) CLR 752—Ram Chandra Patra (Dead) after him, his LRs. Chittaranjan Patra & others Vrs. Raghunath Jew and others—CPC, 1908—Section 96—Appeal against the decree against the Original Court— First Appeal is a valuable right of the parties and unless restricted by Law, the whole case is there is open for rehearing both on questions of fact and law. 23. Here in this matter at hand, although, the Trial Court had dismissed the suit vide C.S. No.20 of 2012 by recording its findings only on one issue i.e. Issue No.V without answering other five issues, then as per the above dictums of Hon’ble Courts and Apex Court, it was the duties and obligations of the First Appellate Court to dispose of the First Appeal vide R.F.A. No.06 of 2014 recording its findings on all the six issues without limiting its findings on the same and one issue vide issue No.V like the Trial Court. But, the First Appellate Court has not done so. For which, the judgment and decree of the First Appellate Court passed in R.F.A. No.06 of 2014 cannot be sustainable under law like the judgment and decree of the Trial Court. 24. As per the discussions and observations made above, when it is held that, the judgments and decrees of the Trial Court and First Appellate Court vide C.S. No.20 of 2012 and R.F.A. No.06 of 2014 are not sustainable under law for the reasons assigned above due to non- answering all the issues, then at this juncture and under these R.S.A. No.447 of 2015 Page 9 of 11 {{ 10 }} circumstances, what shall be the duties of this Second Appellate Court in deciding this Second Appeal. 25. This aspect has already been clarified by the Apex Court in the ratio of the following decisions in the like nature cases:-