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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 521 of 2018 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] --------------- AFR Bhawanipatna Municipality ...… Appellant -Versus- Jayanta Kumar Pati ….. Respondent Advocate(s) appeared in this case :- _________________________________________________________ For Appellant : M/s. Trilochan Nanda & B.K. Panda, Advocates For Respondent : M/s. Dr. Simanchalla Ranjit, J.N. Mohanty & A.R. Samal, Advocate __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 9th October, 2024 SASHIKANTA MISHRA, J. This is a defendant’s appeal against a reversing judgment. The defendant assails the judgment dated 06.10.2018 followed by decree passed by learned District Judge, Kalahandi, Bhawanipatna in RFA No. 17 of 2015, whereby the judgment dated 30.10.2015 followed by decree passed by learned Civil Judge (Jr. Division), Page 1 of 16 Bhawanipatna was set aside and the suit filed by the
Legal Reasoning
plaintiff was decreed. 2. For convenience, the parties are referred to as per their respective status in the Court below. 3. The suit was filed by the plaintiff-respondent for injunction and for declaration that the defendant has no right, title, interest and possession over the suit land and that the decree passed by the Civil Judge (Sr. Division), Bhawanipatna in T.S. No.4 of 1973 is null and void and not binding upon him. 4. The facts of the case are that the suit land originally belonged to the ex-ruler of Kalahandi and came to be recorded in the name of the State in the year 1964- 65. Prior to such settlement, a deed of assignment was executed in the name of the Municipality by the son of the ex-ruler, P.K. Deo empowering it to look after the management of the house standing thereon being used by Wheeler club. Said deed of assignment was executed on 22.11.1962. The father of the plaintiff stayed in the suit house from 1951 and continued to possess it till his Page 2 of 16 death. After his death, the plaintiff possessed the suit house. The defendant Municipality instituted a suit to evict the father of the plaintiff being T.S. No. 4 of 1973 in the Court of learned Civil Judge (Sr. Division), Bhawanipatna. The suit was decreed on 21.01.1975 granting the relief of recovery of possession. The plaintiff’s father did not prefer any appeal. The defendant also did not take any steps to execute the decree within the statutory period. As such, the plaintiff continued to possess the suit house. Since the defendant issued notices of eviction against him several times, he was constrained to file the suit. 5. The defendant entered appearance and contested the suit by filing written statement challenging the maintainability of the suit. On facts it was averred that the ex-ruler had no authority to execute any agreement with the plaintiff’s father. Even otherwise, the possession of the plaintiff’s father, if any, was permissive in nature and cannot ripen into adverse possession either against the defendant or against the State. The suit is bad Page 3 of 16 for non-joinder of the State since the property stands recorded in its name. Further, the judgment and decree passed in the earlier suit not having been challenged, remains valid and binding. The defendant has every right to seek eviction of the plaintiff from the suit house. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination. i. Whether the suit is maintainable as pleaded by the plaintiff? ii. Whether the suit is bad for non-joinder of necessary party i.e. the Govt. of Odisha? Whether it is legally permissible to declare of earlier decree passed by the Civil Judge (S.D) Bhawanipatna in T’S No.4/1973 to be null and void and not binding upon the plaintiff? iv. Whether the suit principles of Resjudicata? is barred by the v. Whether the earlier decree in TS No.4/1973 has attained in its finality in legal term having not executed within statutory period of twelve years? vi. Whether the plaintiff has acquired his right, title, interest in respect of the suit land by way of adverse possession? vii. Whether the defendant can be permanently injuncted from disturbing the peaceful possession of the plaintiff over the suit land? viii. Whether any cause of action arose to bring such a suit by the plaintiff against the defendant? ix. Whether the Plaintiff is entitled for the reliefs, as sought for? Page 4 of 16 x. What other relief (s) the plaintiff is entitled for? 5. The trial Court took up Issue Nos.II & III for consideration at the outset observing that the suit land stands recorded in the name of the Government but the plaintiff not having impleaded the Government as a party, the suit is bad for non-joinder of necessary parties. In so far as the earlier decree is concerned, it was held that the plaintiff being aware of the passing of the decree in 1980, filed the suit in 2011, i.e., after 32 years. Therefore, both the issues were answered against the plaintiff. On Issue Nos. IV & V, the trial Court held that despite not being challenged, the earlier decree remains binding on the parties. On Issue No.VI, it was held that the pleas based on title and adverse possession are mutually inconsistent. On Issue no.VII, the trial Court held that the earlier decree not having been challenged by the father of the plaintiff, the possession of the plaintiff cannot be treated as lawful, for which the prayer for grant of injunction cannot be entertained. On Issue No.VIII, the trial Court held that the plaintiff had no valid cause of action to file Page 5 of 16 the suit. With such findings rendered on the principal issues, the remaining issues were answered against the plaintiff and the suit was dismissed 7. Plaintiff carried the matter in appeal. After considering the grounds raised and the contentions advanced by the parties, the first Appellate Court framed the following points for determination. (1.) Whether the judgment and decree passed in Title Suit no. 4 of 1973 of the Court of learned Civil Judge (Sr. Divn.), Bhawanipatna still holds good and binding upon the plaintiff or if due to efflux of time the decree passed therein having not been executed against the defendant, the same has lost its force? (ii.) Whether the plaintiff has got a better right, title and interest over the suit land and house than that of the defendant? (iii.) Whether without adding the true owner of the suit land and house i.e. State of Odisha, the suit for defendant against Bhawanipatna Municipality can be maintained in the eye of law? injunction the 8. On point No.i, it was held that the earlier judgment still holds good and binding on the plaintiff as he is claiming right over the suit house as successor of his father, who was defendant in the said suit. On point No.ii, the first Appellate Court, referring to the earlier decree Page 6 of 16 held that the plaintiff’s father admitted to be a tenant under the Municipality by paying rent initially to Wheeler club and subsequent to the Municipality. So, his possession was permissive. Such admission by the father is binding on the son (plaintiff). Holding thus, the first Appellate Court found that neither the earlier decree was executed nor the plaintiff was ever ousted. That apart, in the absence of any material showing transfer of the suit house by the true owner (State) in favour of the Municipality it cannot be said that it has a better title than the plaintiff over the suit house. As such, the plaintiff has every right to protect his possession until evicted in due process of law. On Point No.iii, the first Appellate Court observed that the plaintiff’s claim of adverse possession was relinquished midway and was completely abandoned. As such, no relief was claimed from the State. Under such circumstances, it was held that there was no necessity to implead the State as party. After answering the points framed, the first Appellate Court also held that the findings in the earlier suit would Page 7 of 16 not operate as res judicata. The appeal was thus allowed and the suit was decreed in part by restraining the defendant from entering upon the suit land, demanding rent and disturbing possession of the plaintiff till the plaintiff is evicted in due process of law by the true owner. 9. Being further aggrieved, the defendant has filed the present appeal, which was admitted on the following substantial questions of law. “(B) Whether the learned First Appellate Court has committed grave error in law in giving a finding that the plaintiff has better right and title over the suit house then that of the defendant when he has not disputed the finality of the judgment and decree passed by the learned Civil Judge (Sr. Divn.), Bhawanipatna in T.S. No.04 of 1973? (C) Whether the suit of the plaintiff is maintainable in absence of the State of Odisha as the suit property is recorded in the name of State of Odisha vide Ext.-1?” 10.
Legal Reasoning
Heard Mr. T. Nanda, learned counsel appearing for the defendant-appellant and Dr. Simanchalla Ranjit, learned counsel for the plaintiff-respondent. 11. Mr. Nanda would argue that admittedly, the land stands recorded in the name of the State of Odisha in the current settlement as sarba sadharana without anything being mentioned as regards possession of the Page 8 of 16 plaintiff or his father in the remarks column. Therefore, if the plaintiff claims that the defendant has no right and title over the suit land in respect of the house standing thereon, the State of Odisha is a necessary party, in the absence of whom the suit could not have been decided. The suit is therefore, bad for non-joinder of necessary party, more so as the plaintiff also claimed title by way of adverse possession. Mr. Nanda further argues that as per the judicial hierarchy, the decree passed by a Court cannot be challenged or set aside by a Court of inferior jurisdiction. That apart, despite coming to know about passing of the earlier decree in 1980, the plaintiff filed the suit after 32 years. The earlier decree, despite non- execution, still remains binding. Mr. Nanda also argues that the plaintiff has taken mutually inconsistent pleas. The first appellate Court committed error in holding that the plaintiff has better title, when the earlier decree had never been challenged. Since the plaintiff has not approached the Court with clean hands, the relief of injunction could not have been granted. Page 9 of 16 12. Per contra, Dr. Simanchalla Ranjit has argued that there being no relief claimed against the State and the plea of adverse possession having been abandoned by the plaintiff, he was not obliged to implead the State as a party. Therefore, the suit cannot be held to be bad for non-joinder. The defendant being the decree holder in the earlier suit never took step within the statutory period to enforce it and therefore, the same has no binding effect. Even otherwise, the earlier decree relates to ejectment of plaintiff’s father from the suit house and realisation of rent but the present suit relates to protecting the possession of the plaintiff and therefore, the principle of res judicata cannot be applicable. The plaintiff has a better possessory title as found by the first Appellate Court and therefore, can only be evicted by the true owner and not the defendant, who has no title. 13. The first question that falls for consideration by this Court is what would be the effect of the decree passed in the earlier suit. The judgment dated 21.01.1975 in T.S. No. 4 of 1973 passed by the Subordinate Judge, Page 10 of 16 Kalahandi was marked Ext.2 before the trial Court. Reading of the judgment reveals that the suit was filed by the present defendant for recovery of possession of the suit house and premises on ejectment of the defendant and for decree of Rs.602.19 as rent and damages amounting to Rs.540/- up to 31.12.1972. The suit was decreed by granting the relief claimed for arrear rent and damages and also for recovery of possession and ejectment of the defendant. This decree was never challenged by the defendant therein nor executed by the plaintiff-decree holder at point of time. It would be profitable to refer at this stage to Article 136 of the Limitation Act, which reads as follows: “136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.” for Page 11 of 16 14. Obviously, the suit was not one for perpetual injunction so as to be saved by the proviso quoted above. Nevertheless, the findings being rendered by a competent Court of law cannot be completely ignored as rightly held by the first Appellate Court. The present suit was filed by the plaintiff to injunct the defendant-Municipality and to declare that it has no right, title, interest and possession over the suit house. Though the plaintiff claims to have stepped into the shoes of his father (defendant in the earlier suit), yet it is evident that the status of both of them as parties are entirely different, inasmuch as admittedly, the plaintiff’s father was a tenant initially of the Wheeler club and subsequently under the Municipality. It is nobody’s case that the plaintiff is the tenant but a person, who had continued to possess the suit house after death of his father. His suit was therefore, confined to protecting his possession in view of the repeated notices of eviction issued by the Municipality. Under such circumstances, it cannot be said that the Page 12 of 16 findings of the earlier decree would operate as res judicata. 15. It has been argued forcefully by Mr. Nanda that the true owner being the State and the plaintiff having claimed that the defendant has no title, the suit could not have been decreed in the absence of the true owner, i.e. the State. On the other hand, Dr. Simanchalla Ranjit would argue that the suit was filed by the plaintiff only to protect his possession and the title that he had initially claimed against the true owner was abandoned. 16. After hearing learned counsel for the parties and on going through the materials on records and the impugned judgments, this Court finds force in the submission of Dr. Ranjit that the suit being essentially filed by the plaintiff to protect his possession against the steps taken by the defendant to evict him cannot be treated as bad in law in the absence of State. As rightly held by the first Appellate Court, no relief was claimed by the plaintiff against the State for which it cannot be Page 13 of 16 treated as a necessary party in absence of whom, a decree cannot be passed. 17. Mr. Nanda further argues that the first Appellate Court has committed manifest error in holding that the plaintiff has a better title than the defendant when title over the suit property is not in dispute at all. Dr. Ranjit on the other hand argues that ‘title’ in the instant case refers to possessory title and not title as such. 18. A reading of the impugned judgment reveals that the first Appellate Court has considered the record of rights published in the year 1964-65 settlement in favour of the State and also the provision under Section 121 (f) of the Odisha Municipal Act, 1950. It was thus held that there is no evidence to show transfer of the suit house by the State Government in favour of the Municipality for local public purposes. It was also held that the plaintiff has never been ousted from the possession of the suit house and is continuing in possession. Under such circumstances, it cannot be said that the defendant has a Page 14 of 16 better title than the plaintiff over the suit house because the latter has every right to protect his possession until evicted in due process of law by the true owner. This Court observes that the use of the word ‘title’ by the first Appellate Court is not in the sense of referring to the ownership of the property, but the comparative right of the parties over the suit house. In other words, the first Appellate Court was considering the matter entirely from the perspective of possession and therefore, held that the plaintiff has a better title. It was neither the intention of the first Appellate Court not can it be read from the impugned judgment that the plaintiff’s title as such was declared over the suit house as against the true owner but only his right to possess until evicted in due process of law was recognized. This Court finds nothing wrong in the finding of the first Appellate Court, which is based on a correct appreciation of evidence on record. 19. For the foregoing reasons therefore, this Court finds that the first Appellate Court correctly appreciated the facts and evidence on record to decree the suit in Page 15 of 16 favour of the plaintiff. From what has been narrated hereinbefore, this Court sees no reason to interfere with the impugned judgment. The substantial questions of law framed are answered accordingly 20. In the result, the appeal fails and is therefore, dismissed, but in the circumstances without any cost. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 9th October, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Oct-2024 11:18:52 Page 16 of 16