The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 494 of 2023 1st Additional District [An appeal under Section 100 of the Code of Civil Procedure, 1908 from the judgment dated 18.10.2023 passed by Judge, Baripada, learned Mayurbhanj in R.F.A. No.18 of 2023 confirming the judgment and decree dated 23.02.2023 and 22.03.2023 passed by learned Addl. Senior Civil Judge, Baripada in C.S. No.379 of 2018] Sailendra Das @ Dhurba Das ...… Appellant --------------- -Versus- Bidyadhar Behera ….. Respondent Advocate(s) appeared in this case :- ________________________________________________________ For Appellant : Mr. Banshidhar. Baug, Sr. Advocate with M/s. M.R. Baug, G.R. Sahoo & H. Sahu, Advocates
Legal Reasoning
For Respondent : Mr. Bibekananda Bhuyan, Sr. Advocate with M/s. S.S. Buyan, S. Sahoo, S. Mohapatra, Advocates __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 5th August, 2025 SASHIKANTA MISHRA, J. This is a defendant’s appeal against a confirming judgment. The suit filed by the plaintiff for eviction, Page 1 of 8 recovery of possession and permanent injunction along with consequential reliefs being decreed and the counter- claim of the defendant being dismissed, has been 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 plaintiff’s case, briefly stated, is that the suit Schedule-A land was purchased by the plaintiff on 16.11.1983 from one Bipra Charan Rout. It was mutated in the name of the purchaser and he has been possessing the land by paying rent to the Government. The suit land consists of three plots, over one of which, the plaintiff started construction of his residential house and also resided therein with his family members. In the Phailin cyclone in the year 2013, the house of the defendant collapsed and having no other place to reside, he requested the plaintiff to permit him to occupy the vacant asbestos roof house belonging to him for a period of two years till construction of his new house. He assured the plaintiff that after construction of his house he would vacate the said asbestos roof house. When the plaintiff, after two years Page 2 of 8 requested the defendant to render vacant possession, the latter requested for more time citing financial difficulties. Again after one year, the plaintiff requested the defendant to give vacant possession but the defendant deferred the same on various pretexts. Ultimately, on 02.03.2018 the plaintiff demanded vacant possession of the suit land but the defendant refused. He sent Advocate’s notice on 21.05.2018 to the defendant asking for vacant possession of the suit land but the defendant avoided to receive the notice and returned the same. Hence, the suit. 4. The defendant, after entering appearance filed a written statement along with a counter-claim. It is his case that the suit land along with other lands was recorded in the name of Bipra Charan Rout under Khata No.177 in the current settlement with note of possession in favour of Bansi Behera and others against plot No. 331. On 04.01.1950, one Kalia Behera, who is the maternal grandfather of defendant, purchased the suit land orally from the Sabik tenant along with other plots for a consideration of Rs.45/- and took delivery of possession along with other plots from their vendors. Bipra Charan Page 3 of 8 Rout also sold part of the suit land along with other land to different persons on receipt of consideration money and delivered possession to different persons during his life time. Kalia Behera was also paying municipality holding tax and rent to the government but being a rustic villager, was not acquainted with the revenue records. After his death, his three sons and daughter inherited and possessed the suit land along with other lands. During the current settlement operation, the legal heirs of Kalia Behera submitted all relevant documents before the settlement authority, but due to undue influence exerted by Bipra Charan Rout, the authorities recorded the suit land in his name and remarked forcible possession in the name of the sons of Kalia Behera. According to the defendant, mere wrong recording in the settlement will not extinguish the right, title and interest of the defendant. As regards the so- called sale by the plaintiff, according to the defendant, the plaintiff has obtained a fabricated registered sale deed in respect of record Ac.0.16 dec. of land in his name, which is illegal and void. The mutation ROR in his name is outcome Page 4 of 8 of fraud. The suit land is being possessed by the sons and daughter of Kalia Behera since more than 60 years. 5. In addition to the averments, the defendant also raised a counter-claim to the effect that the right, title, interest and possession over the suit land is in their favour as the property is his purchased property being a residential house where he has been residing with his family members by paying electricity dues, rent and other taxes since more than 60 years. 6. In view of the rival pleadings, the trial Court framed the following issues for determination. “(i) Whether the suit is maintainable in its present form? (ii)Whether the plaintiff has got any cause of action to file the suit? (iii) Whether the suit is liable to be dismissed for non- joinder of necessary parties? (iv) Whether the plaintiff is entitled to recover possession of schedule-C land and schedule-C-1 house by evicting the defendants? (v) Whether the defendants are injuncted permanently to come over the suit land and the house standing thereon? (vi) Whether the plaintiff is entitled to get the compensation @ Rs.1,000/- per month against the damage from dtd.27.06.2018 till the date of actual vacation and the same may be realized from the defendants by attaching and immovable properties? (vii) Whether the counter-claimant is entitled to have right, title, interest over the suit schedule-C land and the house thereon by the way of adverse possession? the defendants on and the movable selling from and Page 5 of 8 (viii) To what other is entitled to ?” relief/reliefs the plaintiff 7. After appreciating the evidence, both oral and documentary as adduced by the parties on the issues framed, the trial Court found the plaintiff to have established his title and accordingly decreed the suit by directing the defendant to vacate the suit schedule-C land and Schedule C-1 house to be given to the plaintiff within a stipulated time. Further, the counter-claim filed by the defendant was dismissed. 8. Being aggrieved, the defendant carried appeal but only against the decree. The dismissal of the counter- claim was not challenged. The First Appellate Court taking note of the above fact confirmed the decree of the trial Court by the impugned judgment and decree. 9. Heard Mr. B. Baug, learned Senior Counsel with Ms. H. Sahoo, learned counsel for the defendant-appellant. 10. Mr. Baug has raised several points to find fault with the impugned judgments. 11. This Court however, finds that the grounds urged before this Court are not available to be rasied at the Page 6 of 8 instance of the defendant in view of the fact that the dismissal of the counter-claim was never challenged by the defendant before the First Appellate Court. It was always open to the defendant to challenge the dismissal of the counter-claim but he chose not to do so, for reasons best known to him. Not having challenged the dismissal of the counter-claim at the appropriate stage it is no longer open to the defendant to do so in Second appeal. In fact, taking note of the same, the First Appellate Court has observed as follows: xx xx “xx In my considered opinion, when the appellant- defendant has utterly failed on the counter claim and has admitted that he has no case and has not preferred appeal against the dismissal order of the counter claim and he has put-forth his claim basing on two contradictory averments and has challenged the due execution of the sale deed in favour of the respondent-appellant, the learned Addl. Senior Civil Judge, Baripada has not made any error apparent in allowing the suit of the respondent-plaintiff and dismissing the counter claim of the appellant- defendant. Similarly, the decisions relied on by the counsel for the appellant-defendant though relevant but in my considered opinion are not applicable to the present facts and circumstances of this case basing on which the appellant-defendant has challenged the impugned judgment and decree of the learned Addl. Senior Civil Judge, Baripada. On viewing the impugned judgment of the learned Addl. in Judge, Baripada Senior Civil C.S.No.379/2018, I am of the considered opinion that the learned Addl. Senior Civil Judge, Baripada has not committed any illegality or irregularity and passed Page 7 of 8 has rightly dismissed the counter claim and has respondent- the decreed plaintiff. Hence, ordered.” suit the of 12. This being the factual position, the defendant is obviously estopped to challenge the impugned judgment by assailing the dismissal of the counter-claim. This Court, therefore, finds no substantial question of law involved for adjudication in the second appeal. 13. In the result, the second appeal is dismissed.
Decision
There shall be no order as to costs. ………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 5th August, 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: 12-Aug-2025 11:39:12 Page 8 of 8