The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.171 of 2021 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 22.03.2021 & 31.03.2021 respectively passed by the learned Additional District Judge, Talcher in R.F.A. No.17 of 2016 confirming the judgment dated 07.05.2016 passed by the learned Civil Judge (Senior Division), Talcher, in C.S. No.234 of 2010. ---- Khiramohan Naik …. Appellant -versus- …. Respondents M/s. Jindal India Thermal Power Ltd. & Others Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mrs. Sumitra Mohanty, K. Mohapatra, S.N. Biswal (Advocates) For Respondents- Mr. Pradipta Kumar Mohanty, Sr. Advocate M/s. Pronoy Mohanty, P.K. Pasayat, S.N. Dash, S.K. Sahu, Advocate For R-2. M/s. Satyajit Mohanty, D.P. Sahu, Advocate for R-1. M/s. Kabir Kumar Jena, Soumya Rathi Das, Advocate for R-4 to R-8. CORAM: MR. JUSTICE D.DASH DATE OF HEARING:21.09.2023:: DATE OF JUDGMENT: 09.10.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment R.S.A. No.171 of 2021 Page 1 of 9 {{ 2 }} and decree dated 22.03.2021 & 31.03.2021 respectively passed by the learned Additional District Judge, Talcher in R.F.A. No.17 of 2016. 2.
Legal Reasoning
The Appellant with his mother, namely, Nuadei Nayak as the Plaintiffs had filed Civil Suit No.234 of 2010 in the Court of Civil Judge, Senior Division, Talcher arraigning the Respondent No.1 to 3 as the Defendants. The suit was for declaration of their right, title and interest over the property described in schedule ‘A’ of the Plaint and confirmation of possession and for further declaration of their natural right of easement over the property described in schedule ‘B’ of Plaint, and for recovery of possession of the same in the event of their dis-possession as well as permanent injunction and damage. The suit was decreed in part by the Trial court. The Appellant and his mother (Plaintiffs) were declared to be having right, title interest over Schedule ‘A’ properties when the other reliefs prayed for were declined. 3. Being aggrieved by the said judgment and decree passed by the Trial Court, this Appellant and his mother had carried the Appeal under Section 96 of the Code. In the said Appeal, Respondent No.2 (Defedendant No.2) filed a cross objection. The First Appellate Court upon hearing the Appeal and the cross objection, has dismissed the appeal filed by the present Appellant and his mother (Plaintiffs) and allowed the cross-objection filed by the Respondent No.2 (Defendant No.2). Resultantly, the suit filed by the present Appellant and his mother as Plaintiffs, stood dismissed in its entirety. The mother of the Appellant, who was the co-Plaintiff with the Appellant having died in the meantime, her legal heirs have been impleaded as parties in this appeal being arraigned as Respondent No.4 to 8. R.S.A. No.171 of 2021 Page 2 of 9 {{ 3 }} 4. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 5. Plaintiff’s case is that the property in schedule ‘A’ of the Plaint is their ancestral property. The said property was settled in favour of one Puhan Nayak, who happens to be the grandfather of the Plaintiff No.1 in JK Case No.631/2 of the year 1948-49. Accordingly, Mutation Khata No.576 was prepared in the name of Puhan Nayak. He possessed the suit land till his death. After his death, his son Palau Nayak, who happens to be the father of Plaintiff No.1 and husband of Plaintiff No.2, was in possession of the same till 22.07.2004 and thereafter, the Plaintiffs are continuously possessing the same. It is stated that in the hal settlement Record of Right published in the year 1985-86, the land was wrongly recorded in the name of State as “Abadayogya Anabadi” under “Patita Kisam”. Palau Nayak when came to know of such wrong recording, on 17.02.2003, applied to the Tahasildar for correction of the same. The Tahasildar rejected the said application by order dated 31.03.2006. The Plaintiffs thereafter filed Civil Suit No.24 of 2006 in the Court of Civil Judge (Junior Division), Talcher against the Defendant No.3 (State of Orissa) for declaration of their rights, title, interest and confirmation of possession in respect of Schedule ‘A’ land. The suits was decreed ex-parte on 05.04.2010. The right, title, interest of the Plaintiffs over Schedule ‘A’ land was declared and their possession was confirmed. It is stated that during pendency of the said suit, the Defendant No.3 granted lease of the said land vide Lease Case No.5 of 2008 in favour of Defendant No.2, who in turn transferred the land in favour of Defendant R.S.A. No.171 of 2021 Page 3 of 9 {{ 4 }} No.1. This transfer is attacked by the Plaintiffs to the hit under the provision of Section 52 of the Transfer of Property Act as his pendense transaction. It is stated that by such transfer, the Defendant No.1 has acquired no interest over Schedule ‘A’ property and that still rests with the Plaintiffs. It is further stated that a road lies over the land under Plot No.5722, which is near the land under Schedule ‘A’ of the plaint. That road is said to be a Government road and in between Schedule ‘A’ land and the road under Plot No.5722, there is another patch of Government land under Plot No.5964. Thus, it is claimed that the Plaintiffs in order to have entry and exit to their land under Schedule ‘A’ from the road under plot No.5722 have been using the land under plot No.5964 for last 50 years. So they claim to have acquired easementry right of way over the land under plot No.5964. Since the Defendant No.1 on 26.10.2010, came with an excavator and removed the eastern side ridge of the land of the Plaintiffs in spite of objection, the suit came to be filed. 6. The Defendant No.1 in its written statement questioned the validity of the judgment passed in Civil Suit No.24 of 2006. It stated that since they were not the party, the ex parte judgement passed in that suit on 05.04.2010 is not binding against them. They further stated that the possession of the suit land as also the other land over which easementary right is claimed is not with the Plaintiffs. The Defendant No.2 in its written statement supported the case projected by the Defendant No.1. 7. On the above rival pleadings, the Trial Court having framed ten (10) issues; upon examination of evidence and their evaluation in the backdrop of their respective pleadings has held that the Plaintiffs have no right of Page 4 of 9 R.S.A. No.171 of 2021 {{ 5 }} easement over the property described in Schedule ‘B’. Accordingly, that relief claimed by the Plaintiffs has been refused. In respect of the crucial issue as to the claim of right, title and interest advanced by the Plaintiffs over schedule “A’ Land, the Trial Court in view of the judgment passed in Civil Suit No.24 of 2006 confirmed in RFA No.19 of 2010 having said that the transactions in respect of Schedule ‘A’ land between the Defendants inter se having taken place during pendency of the said suit, the judgment and decree passed in the said suit would hold the field and therefore, mainly honouring the said judgment and decree passed in the earlier suit, the right, title and interest of Plaintiffs over Schedule ‘A’ land was declared. 8. The Plaintiffs being aggrieved by the said judgment and decree passed by the Trial Court filed an Appeal praying for grant of all such reliefs in respect of Schedule ‘A’ as well as schedule ‘B’ land in their favour. In that Appeal, the Defendant No.2 filed a cross-objection questioning the grant of relief to the Plaintiffs in respect of Schedule ‘A’ land as has been passed by the Trial Court. The First Appellate Court, while dismissing the Appeal filed by the Plaintiffs, has allowed the cross-objection and thus the plaintiffs have been non-suited. 9. At the outset, it be stated that the learned Counsel for the Plaintiffs in course of hearing confined her submission in respect of dismissal of the suit of the Plaintiffs in so far as Schedule ‘A’ property is concerned in urging that the Trial Court’s decree declaring the Plaintiff’s right, title interest over the Schedule ‘A’ land ought not to have been set at naught by the First Appellate Court. R.S.A. No.171 of 2021 Page 5 of 9 {{ 6 }} 10. Learned counsel for the Appellant (Plaintiff) submitted that in the earlier suit i.e. Civil Suit No.24 of 2006, the right title interest of the Plaintiffs over Schedule ‘A’ land having been declared and that when have been confirmed in RFA No.19 of 2010, the First Appellate Court is not right in totally dishonouring said judgments and decrees passed in the earlier round of litigation. She further submitted that all these transactions between the Defendants inter se having taken place during pendency of the suit, the Trial Court had rightly refused to take cognizance of those transactions being hit under the provisions of section 52 of the Transfer Of Property Act and the First Appellate Court could not have sat over the same as if in session of an Appeal. According to her, the First Appellate Court ought not to have found fault with those judgments and decrees in the earlier round of litigation in respect of Schedule ‘A’ land on the ground of fraud being practised by the Plaintiffs in obtaining such judgments and decrees and declare the same as null and void. She therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.
Legal Reasoning
11. Learned counsel for the respondents No.1 and 2 in assisting the Court in the matter of admission submitted that the grave error committed by the Trial Court by not taking into account the non-disclosure of the material facts concerning the Schedule ‘A’ property by the Plaintiffs and the suppression of said facts, thus playing fraud upon the Court has been rightly rectified by the First Appellate Court. It was further submitted that when during the pendency of that suit, the land in Schedule ‘A’ was duly acquired by the Defendant no.3 (State) for the Defendant No.2 by resorting to the provision of Land Acquisition Act, 1898 (for short, ‘the LA Act’) and the Plaintiffs having received the compensation on account of such acquisition of the land in Schedule ‘A’, all such material facts having been R.S.A. No.171 of 2021 Page 6 of 9 {{ 7 }} suppressed in the earlier Suit and Appeal, the First Appellate Court has rightly arrived at a conclusion that said Judgments and decrees passed in the prior suit are vitiated by fraud and, therefore, the Plaintiffs by the time of pronouncement of the judgments since had no right title interest and possession of the property in Schedule ‘A’, which had already been extinguished by virtue of acquisition followed by payment of compensation, they have rightly been non-suited. Since the prior judgments and decrees declaring the right title interest of the Plaintiffs over Schedule ‘A’ Land the Plaintiffs in no better position in respect of the said property, which stood altered by virtue of acquisition; the suit with the reliefs claimed has rightly been dismissed. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 13. The judgments passed by the Trial Court and the First Appellate Court in Civil Suit No.24 of 2006 and RFA No.19 of 2010 which have been admitted in evidence and marked Ext.9 and 14, would reveal that the right title interest of the Plaintiffs in respect of Schedule ‘A’ land had been declared thereunder. Being armed with those; it is again asserted by the Plaintiffs in the present suit that the said judgments and decrees are to be honoured and it is urge that their right, title interest in Schedule ‘A’ land be accordingly declared. Be that as it may, the Plaintiff No.1 when has appeared in the witness box as P.W.1, in order to prove their case, as against the Defendants in seeking the reliefs has unequivocally stated that the suit land has been acquired by the Defendant no.3-State, he has also stated that the notice under Page 7 of 9 R.S.A. No.171 of 2021 {{ 8 }} section 4(1) of the L.A Act had been issued on 18.01.2008. He has admitted in his evidence to have received one cheque of Rs.1,00,000/- from the Defendant No.1 on 02.12.2013. In that connection, he has admitted his signature on the photocopy of the money receipt. It has also been stated that he had not raised any objection before the Land Acquisition Collector in respect of said acquisition. Accordingly, P.W.1 has also stated on oath that the Defendant No.1 is in possession of the suit and under Plot No.7156 (Schedule ‘A’) since in the year 2008 and he has never raised any protest to such possession of the said land by the Defendant No.1. It is also stated and that the said land is within the project area of Defendant no.1. Position now stands crystal clear that all these material facts concerning the suit land in Schedule ‘A’ were not placed by the Plaintiffs in the earlier suit i.e. Civil Suit No.24 of 2006. It has also been stated by P.W.1 that the suit plots were lying vacant and Defendant no.1 took possession of the said land. The Plaintiffs on their own saying are not in possession of the suit land since the year 2008 in view of the acquisition of the said land by Defendant no.3. All those facts were suppressed in the earlier suit, which had been decreed ex parte. The title of the suit property having vested with the State since acquisition and that had been purposely suppressed in the earlier suit filed by the Plaintiffs. By virtue of that decree in the suit obtained by suppression of the material facts concerning the suit property wherein the Plaintiff’s right, title, interest and possession stood extinguished even during then, in view of the intervening events, now the Plaintiffs seek to honour that decree again without stating anything about the acquisition and receipt of consideration in the plaint but only coming to say so during the evidence. So in the present suit as it appears, though an attempt had been made to suppress all such facts, for some reason it is not known as to how good sense R.S.A. No.171 of 2021 Page 8 of 9 {{ 9 }} had prevailed upon the Plaintiff to admit all such facts in evidence, perhaps on finding this suit not going uncontested. The Trial Court when having not taken all these facts in obtaining the earlier judgments and decrees into account, when had granted the relief to the Plaintiff declaring their right title interest over Schedule ‘A’ land, the First Appellate Court has very rightly rectified the same in non-suiting the Plaintiffs, who on their own saying, have committed fraud upon the Court that when they had lost their right title interest over Schedule ‘A’ property by virtue of acquisition as per law, and had no right to continue with that suit. Therefore, the present suit at their instance seeking unlawful enrichment, banking upon the said judgments and decrees passed in the earlier round of litigation, has been rightly dismissed. In the wake of aforesaid, the submission of learned Counsel for the Appellant (Plaintiff No.1) that there arises substantial questions of law for being answered in the Appeal meriting its admission, stand repelled. 14.
Decision
In the result, the appeal stands dismissed. There shall be however no order as to cost. (D. Dash), Judge. Signature Not Verified Digitally Signed Gitanjali Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 18-Oct-2023 10:43:14 R.S.A. No.171 of 2021 Page 9 of 9