The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 909 OF 2023 (An application under Article 227 of the Constitution of India) Laxman Nath and others …. Petitioners * * * * -versus- Bhagaban Nath …. Opp. Party Advocates appeared: For Petitioner : Mr. Susanta Kumar Dash, Advocate For Opp. Party : Mr. S.S.K. Nayak, Advocate CORAM: JUSTICE K.R. MOHAPATRA ------------------------------------------ Heard and disposed of on 08.01.2024 ----------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Order dated 27th July, 2023 (Annexure-6) passed in Civil Revision No.05/02 of 2022/2023 is under challenge in this
Facts
CMP, whereby dismissing the revision, learned Additional District Judge, Anandapur confirmed the order dated 11th October, 2021 (Annexure-5) passed by learned Civil Judge (Senior Division), Anandapur in CMA No.77 of 2018 (arising out of Execution Case No.15 of 2009) dismissing an application under Section 47 C.P.C. CMP NO. 909 OF 2023 Page 1 of 8 // 2 //
Legal Reasoning
no doubt with regard to the position of law that a decree can be challenged in an execution proceeding on the ground of inherent lack of jurisdiction. In order to hold that the Court lacked CMP NO. 909 OF 2023 Page 6 of 8 // 7 // jurisdiction to try the suit in view of any bar under law, it must be apparent on the face of the material available. In the instant case, the Petitioners contended that the land in question was settled in favour of Bhalu Nath in an OEA proceeding. On that basis, they claimed that the Civil Court lacked jurisdiction to decide the issue of right, title and interest in respect of the self- same property. The documents basing upon which the Petitioners claim that the civil Court lacked jurisdiction to decide the suit were filed before this Court and on consideration of the materials on record, it has already been held that said documents are bogus ones. As such, documents have got no relevance for adjudication of the matter in dispute involved in the civil suit. The issue with regard to parentage as well as adoption cannot be decided by the authority under the OEA Act. It further appears that the Petitioners have tried their luck in assailing the judgment and decree passed by the Civil Court up to the Hon’ble Supreme Court and failed. But for the reasons best known the Petitioners did not raise the issue of jurisdiction of civil Court at any stage. Further, the settlement under the OEA Act, as submitted by Mr. Dash, learned counsel requires factual adjudication to arrive at a conclusion with regard to its effect on the subject matter of dispute in the civil Court. 9. No doubt, OEA Case No. 122 of 1985 was filed for settlement of the land in question in favour of Bhalu Nath, wife of Kanhu Charan Nath. On perusal of Annexure-2 series, it appears that lands were recorded in Bebandabasta status and in view of the letter of Board of Revenue dated 7th February, 1977, CMP NO. 909 OF 2023 Page 7 of 8 // 8 // proceedings were initiated as per the principles laid down in the said letter and the lands were settled under the lease principles. Thus, prima facie it appears that although nomenclature of the proceeding was OEA Case, but, in fact, the same was undertaken pursuant to the letter dated 7th February, 1977 issued by the Board of Revenue and not under the provisions of the OEA Act. In that view of the matter, it cannot be said that on the face of it, the Civil Court lacked jurisdiction to adjudicate the suit. Unfortunately, the Defendants-Petitioners had made an attempt before this Court by filing the documents with regard to settlement of the land to be admitted as additional evidence. Although the matter was initially remitted to learned 1st Appellate Court, but, at the subsequent stage, this Court in RSA No. 341 of 2009 held the documents to be bogus ones for adjudication of the suit. As such, it has got no relevance for adjudication of the suit. In that view of the matter, the case laws relied upon by Mr. Dash, learned counsel for the Petitioners, are of no assistance to him. 10. On perusal of the impugned orders under Annexures-5 and 6, this Court finds that the same are well discussed and were passed discussing the matter in dispute in detail. Accordingly, this Court does not find any reason to interfere with the same. As such, the CMP being devoid of any merit stands dismissed. Urgent certified copy of the judgment be granted on proper application. Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication bks Location: High Court of Orissa, Cuttack Date: 11-Jan-2024 17:44:52 CMP NO. 909 OF 2023 (K.R. Mohapatra) Judge Page 8 of 8
Arguments
3. Mr. Dash, learned counsel for the Petitioners submits that the Opposite Party as Plaintiff filed T.S. No.31 of 1986 for declaration that the Defendant No.1 and his father late Kartika Nath were not the adopted son of late Kahnu and his wife Bhalu and also to declare the Plaintiff as the sole successor to the properties of Bhalu Nath as well as to restrain the present Petitioners from encroaching upon and disturbing their peaceful possession over the suit land. The suit was decreed in favour of Plaintiff-Opposite Party by learned Civil Judge (Senior Division), Anandapur vide judgment dated 18th July, 1988 with the following order: “The Plaintiff’s suit is decreed on contest against Defendant Nos.1 to 4 and ex parte against Defendant Nos.5 and 6 and with cost. It is declared that the D1 and his father Kartika Nath are not the adopted sons of Bhalu Nath and her husband Kanhu Nath. It is further declared that the Plaintiff is the sole successor to the property of late Bhalu Nath. The Defendant Nos. 1 to 4 are permanently restrained from entering into and interfering in the right, title, interest and possession of the Plaintiff in the suit property.” 3.1 Assailing the same, the Defendants-Petitioners preferred Title Appeal No. 34 of 1998 before learned District Judge, Keonjhar, which was dismissed. Thereafter, the Petitioners preferred second appeal before this Court. During pendency of the appeal, an application under Order XLI Rule 27 C.P.C. was filed by the Petitioners for adducing additional evidence. This Court remitted the matter to learned 1st Appellate Court with necessary direction for disposal of the appeal in accordance with law after disposing of the petition under Order XLI Rule 27 CMP NO. 909 OF 2023 Page 2 of 8 // 3 // C.P.C. Learned 1st Appellate Court on remand admitted the documents in evidence and dismissed the appeal on merit. 4. Being aggrieved, the Petitioners moved this Court in RSA No. 341 of 2009, which was also dismissed. Assailing the same, the Petitioners moved the Hon’ble Supreme Court in SLP (Civil) No.32995 of 2016, which was dismissed. In the meantime, the Plaintiff-Opposite Party filed Execution Case No. 15 of 2009. The Petitioners-J.Drs. upon receipt of notice appeared and filed an application under Section 47 C.P.C., which was registered as CMA No.77 of 2018. 5. Mr. Dash, learned counsel for the Petitioners further submits that during pendency of the suit, the land in question was settled in favour of the Petitioners in an OEA proceeding. Thus, the decree passed by the Civil Court suffers from inherent lack of jurisdiction in view of Section 39 of the Orissa Estates Abolition Act, 1951 (for short ‘OEA Act’). It is his submission that an application under Section 47 C.P.C. can be filed on the ground of inherent lack of jurisdiction. Even if such an issue was raised before the Civil Court and was answered in negative, there is no legal bar to raise the issue before the Executing Court. In view of settlement of the land in favour of the Petitioners in an OEA proceeding, the Civil Court lacked jurisdiction to entertain the suit in view of Section 9 of the C.P.C. Thus, the Executing Court has jurisdiction to entertain the application on the said ground and consider the same in accordance with law. Learned Executing Court as well as learned Revisional Court being swayed away by the fact that the CMP NO. 909 OF 2023 Page 3 of 8 // 4 // matter has already been dismissed by this Court as well as Hon’ble Supreme Court rejected the application under Section 47 C.P.C. He relied upon the decision in the case of Hira Lal Patni –v- Kali Nath, reported in AIR 1962 SC 199, wherein it is held that validity of the decree can be challenged in the execution proceeding only on the ground that the Court which passed the decree lacked inherent jurisdiction. Thus, a petition under Section 47 C.P.C. was maintainable. He also relied upon the decisions in the case of Mathura Prasad Bajoo Jaiswal and others –v- Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 and Isabella Johnson(Smt) –v- M.A. Susai (Dead) by LRs, reported in (1991) 1 SCC 494, wherein it is held that if the Court assumes jurisdiction, which it does not possess under the statute, the question cannot operate as res judicata even between the same parties as it will assume a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. On a pure question of law, principle of res judicata or estoppel hardly applies. 6. Mr. Dash, learned counsel for the Petitioners, further submits that the Civil Court lacked jurisdiction in view of Section 39 of the OEA Act to declare right, title interest over the suit land in favour of the Petitioners. Thus, the decree passed by the Civil Court is an outcome of inherent lack of jurisdiction. In support of his case, he also relied upon the decision in the case of Sushil Kumar Mehta –v- Gobind Ram Bohra (Dead) through his LRs., reported in (1990) 1 SCC 193, wherein it is held that the Civil Court lacked jurisdiction to pass a decree for CMP NO. 909 OF 2023 Page 4 of 8 // 5 // ejectment of a tenant since it vests with Controller under the Act. Hence, the decree is a nullity. He also relied upon the decision in the case of Premnath Khanna alias Pramnath Khanna –v- State of Orissa and others, reported in AIR 2009 Ori 166, wherein it is held that Section 39 of the OEA Act creates a bar in respect of jurisdiction of Civil Court, so far as any order passed under Chapter-II to VI or concerning any matter, which is or has already been the subject of any application made or proceedings taken under the said Chapters. He, therefore, submits that the decree passed by the Civil Court is a nullity as it suffers from lack of inherent jurisdiction. Mr. Dash, learned counsel for the Petitioners further relied upon the decision in the case of Smt.Radhi Dei and others –v- Lalit Bihari Mohanty, reported in AIR 1991 Ori 36, wherein it is held that due to subsequent development, if the decree under execution becomes a nullity, the decree holder is not entitled to execute the same. In the instant case, after an order was passed by the OEA authority, the Civil Court lacked jurisdiction to proceed with the matter. As such, the decree becomes a nullity and the said subsequent development can be taken into consideration by the Executing Court in a proceeding under Section 47 C.P.C. He, therefore, prays for setting aside the impugned orders under Annexures-5 and 6 and to remit the matter to the Executing Court to adjudicate the petition under Section 47 C.P.C. on its own merit. 7. Mr. Nayak, learned counsel for the Opposite Party-D.Hr. vehemently objects to the same. It is his submission that the so CMP NO. 909 OF 2023 Page 5 of 8 // 6 // called settlement in favour of the Petitioners was not under the provisions of the OEA Act, although the petition was styled as OEA Case No.122 of 1985, but it was filed under the Board’s Letter No.867/LR dated 7th February, 1977. The land was recorded in Bebandabasta status and under the lease principle, the land in the said case was settled in the name of Bhalu Nath. Thus, it cannot be said that Section 39 is a bar for the Civil Court to entertain the suit. He further submits that the suit was filed for a declaration that the Defendants are not the sons of Bhalu Nath and Kahnu Nath and also for permanent injunction. The aforesaid question could not have been decided by any other authority than the Civil Court. As such, the Civil Court had jurisdiction to entertain the suit. He further submits that by filing an application for additional evidence, the Petitioners tried to incorporate those documents as additional evidence. This Court while adjudicating the RSA held that those documents are bogus ones. Hence, it has got no relevance for adjudication of the suit. It is his submission that the Petitioners have tried their luck up to Hon’ble Supreme Court and failed. At this stage, they are creating hurdles for execution of the decree, which is to be deprecated. Hence, he prays for dismissal of the CMP. 8. Taking note of the submissions made by learned counsel for the parties and on perusal of the record including the case laws cited, this Court is of the considered opinion that there is