Orissa High Court
Makardhwaja Kalta & Others vs Tirtha Karna & Others on 6 April, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.312 of 2004
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Makardhwaja Kalta & Others .... Appellants
-versus-
Tirtha Karna & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. Gouri Mohan Rath, Advocate. For Respondents - Mr. A.K. Nath, Advocate CORAM:
MR. JUSTICE A.C.BEHERA Date of Hearing :29.02.2024:: Date of Judgment :06.04.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment.
2. The appellants of this 2nd Appeal were the plaintiffs before the trial court in the suit vide T.S. No.6 of 1997 and they were the respondents before the 1st Appellate Court in the 1st Appeal vide T.A. No.14 of 1999.
The respondents of this 2nd Appeal were the defendants before the trial court in the suit vide T.S. No.6 of 1997 and they were the appellants before the 1st Appellate Court in the 1st Appeal vide T.A. No.14 of 1999. Page 1 of 15 RSA No.312 of 2004
{{ 2 }} The suit of the plaintiffs (those are the appellants in this 2nd Appeal) before the trial court vide T.S. No.6 of 1997 was a suit for declaration and recovery of possession.
3. The case of the plaintiffs before the trial court in the suit vide T.S. No.6 of 1997 against the defendants was that, suit Plot No.565 under Khata No.164 measuring an area of Ac.0.115 decimals in village Baladi were originally belonged to their father Nadi Kalta. After the death of their father Nadi Kalta, the suit properties devolved upon them (plaintiffs). Accordingly, the plaintiffs inherited the suit properties. The suit plot No.565 adjoins to plot Nos.563,562 and 564. All the properties i.e. suit plot No.565 along with the undisputed plot No.563,562 & 564 are their ancestral properties. About 10 years back, the defendants possessed a portion of Plot No.563 of the plaintiffs on their permission. When, the plaintiffs requested the defendants to vacate that portion of plot No.563, they (defendants) did not vacate, then the plaintiffs filed a suit vide T.S. No.53/1992 against the defendants praying for their eviction from that occupied portion of plot No.563. The said suit vide T.S. No.53/1992 was decreed on dated 08.07.1994 in favour of the plaintiffs for eviction of the defendants from Plot No.563.
4. When, in spite of passing of the Judgment and decree in T.S. No.53/1992, the defendants did not vacate that Plot No.563, then, they Page 2 of 15 RSA No.312 of 2004 {{ 3 }} (plaintiffs) initiated a Execution Case vide Execution Case No.2/1997 against the defendants to execute the Judgment and Decree passed in T.S. No.53/1992. But, during the course of execution of that Execution Case No.2/1997, the defendants vacated that plot No.563 in favour of the plaintiffs. But, after vacation of that plot No.563, they (defendants) with their mala fide intention and in order to harass the plaintiffs by applying their muscle power, they (defendants) occupied its adjacent plot i.e. the suit plot No.565 of the plaintiffs and they (defendants) claimed their ownership over that suit plot No.565 through an unregistered sale deed. So, without getting any way, the plaintiffs approached the civil court by filing the suit vide T.S. No.6 of 1997 against the defendants praying for declaration of their right, title, interest over suit plot No.565 and for recovery of possession of the same from the defendants.
5. Having been noticed from the Trial Court in the suit vide T.S. No.6 of 1997, they (defendants) contested the same denying the averments made by the plaintiffs in their plaint by taking their stands inter alia therein that:
The suit Plot No.565 was purchased by their father through an unregistered sale deed dated 27.09.1964 from the father of the plaintiffs i.e. from Nadi Kalta and accordingly, since 27.09.1964, they (defendants) are in continuous possession over the suit plot No.565. As, Page 3 of 15 RSA No.312 of 2004 {{ 4 }} they (defendants) have purchased the suit plot No.565 through an unregistered sale deed dated 27.09.1964 , for which, they (defendants) have title over the suit properties. In addition to that, they (defendants) have also perfected their title over the suit properties through adverse possession by possessing the same continuously and uninterruptedly since 27.09.1964. As such, they (defendants) are the owners over the suit properties, in which, the plaintiffs have no right, title, interest and possession.
The further case of the defendants was that, the present suit of the plaintiffs vide T.S. No.6 of 1997 is barred by the provisions of law envisaged under Order 2, Rule 2 of the CPC. Because, while they (plaintiffs) filed their earlier suit vide T.S. No.53/1992 against them (defendants), at that time, they (defendants) were also in possession over the suit Plot No.565, but they (plaintiffs) did not chose to seek any relief in that earlier suit vide T.S. No.53 of 1992 against them (defendants) in respect of suit plot No.565, for which, due to non-seeking of any relief against them (defendants) in that suit vide T.S. No.53 of 1992 by the plaintiffs in respect of suit plot No.565, they (plaintiffs) are estopped/debarred under law as per Order 2 & Rule 2 of the CPC, 1908 to raise any claim over the suit plot No.565 in the subsequent suit at hand vide T.S. No.6 of 1997. As the defendants are the lawful owners of the suit Page 4 of 15 RSA No.312 of 2004 {{ 5 }} properties by possessing the same continuously since 27.09.1964 on the basis of their purchase from the father of the plaintiffs through an unregistered sale deed and as they (defendants) have perfected their title over the suit plot No.565 through adverse possession, for which, the plaintiffs have already lost their all sorts of right, title, interest and possession over the suit plot No.565. Therefore, the suit of the plaintiffs is liable to be dismissed against them (defendants) with costs.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No.6 of 1997 and the said issues are:
ISSUES
1. Whether the plaintiffs have got right title and interest over the suit land?
2. Whether the defendants have acquired right, title and interest over the suit property under the deed of sale dated 27.09.1964 executed by Nadi Kalta in favour of Bida Karna?
3. Whether the suit is grossly under valued and court fee paid is insufficient?
4. Is there any cause of action for the suit?
5. To what other relief the plaintiffs are entitled?
7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, they (plaintiffs) examined 3 witnesses from their side including the plaintiff No.1 as P.W.1 and relied upon the document vide Ext.1.
Page 5 of 15 RSA No.312 of 2004
{{ 6 }} On the contrary, the defendants examined 3 witnesses on their behalf including the defendant No.1 as D.W.1 and exhibited series of documents from their side vide Exts.A to F.
8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendants and basing the findings and observations made by the trial court in the issues in favour of the plaintiffs and against the defendants, the trial court decreed the suit of the plaintiffs vide T.S. No.6 of 1997 against the defendants as per its Judgment and Decree dated 22.03.1999 and 12.04.1999 respectively and granted all the reliefs in favour of the plaintiffs assigning the reasons that, the Execution of an unregistered sale deed dated 27.09.1964 in respect of the suit plot No.565 by the father of the plaintiffs i.e. Nadi Kalta in favour of the father of the defendants i.e. Bida Karna is not duly proved. The defendants have also not established their title over the suit properties through adverse possession. The suit of the plaintiffs is not barred under Order 2 Rule 2 of the CPC, because, the causes of actions of the earlier suit vide T.S. No.53/1992 and present suit vide T.S. No.6 of 1997 are different and separate, only for the reason that, the earlier suit vide T.S. No.53/1992 was filed for plot No.563, but, the present suit vide T.S. No.6 of 1997 has been filed for plot No.565. Page 6 of 15 RSA No.312 of 2004
{{ 7 }} As such, when the document vide Ext.A relied by the defendants is not a genuine document and when there is no sufficient evidence to prove the due execution of Ext.A and when the defendants have failed to establish their title over the suit properties through adverse possession by fulfilling the essentials requisites of adverse possession and when the suit of the plaintiffs is not hit and bar under Order 2, Rule 2 of the CPC, then, the plaintiffs are entitled for the decree in respect of their all reliefs prayed for by them against the defendants.
9. On being dissatisfied with the aforesaid Judgment and Decree dated 22.03.1999 and 12.04.1999 respectively passed by the trial court in the suit vide T.S. No.6 of 1997 in favour of the plaintiffs and against the defendants, they (defendants) challenged the same by preferring the 1st Appeal vide T.A. No.14 of 1999 being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents.
After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide T.A. No.14 of 1999 of the defendants in part and set aside the Judgment and Decree of the trial court as per its Judgment and decree dated 12.04.2004 and 30.04.2004 respectively and decreed the suit of the plaintiffs vide T.S.No.6 of 1997 in part and declared the right, title and interest of the plaintiffs in respect of Ac.0.45 decimals only out of Ac.0.115 decimals of suit Plot No.565, assigning the reasons that, the Page 7 of 15 RSA No.312 of 2004 {{ 8 }} defendants are in possession of rest Ac.0.070 decimals of land of suit Plot No.565 by purchasing the same from the father of the plaintiffs through an unregistered sale deed vide Ext.A, for which, the plaintiffs are entitled for recovery of possession of Ac.0.045 decimals only out of Ac.0.115 decimals of land of suit plot No.565 from the defendants, but not the entire suit Plot No.565.
10. On being aggrieved with the aforesaid part Judgment and Decree dated 12.04.2004 and 30.04.2004 respectively passed by the 1st Appellate Court in T.A. No.14 of 1999, they (plaintiffs) challenged the same by preferring this 2nd Appeal being the appellants against the defendants by arraying them (defendants) as respondents.
This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.
1. Whether the findings of the lower appellate court that, the suit is bared under Order 2, Rule 2 of the CPC is sustainable in the eye of law, when cause of action for both the suits i.e. T.S.No.53 of 1992 and T.S. No.6 of 1997 are different?
2. Whether the lower appellate court committed serious error in law in holding that trial court was not competent to compare the document itself and to give its finding regarding the genuineness of the sale deed in question?
11. I have already heard from the learned counsels of both the sides. Page 8 of 15 RSA No.312 of 2004
{{ 9 }}
12. So far as the 1st formulated substantial question of law i.e. Whether the finding of the lower appellate court that, the suit of the plaintiffs is barred under Order 2, Rule 2 of the CPC is sustainable in the eye of law, when cause of action of both the suits i.e. T.S.No.53 of 1992 and T.S. No.6 of 1997 are different is concerned;
It is the admitted case of the parties that, the earlier suit vide T.S. No.53/1992 was filed by the plaintiffs against the defendants for declaration of their title and recovery of possession in respect of plot No.563. But, the present suit at hand vide T.S. No.6 of 1997 has been filed by the plaintiffs against the defendants for declaration of their title and recovery of possession in respect of plot No.565.
Plot No.563 and Plot No.565 are two separate and different plots. The cause of action for the earlier suit vide T.S. No.53/1992 is different from the present suit vide T.S. No.6 of 1997.
When, the cause of action of the earlier suit and the subsequent suit between the same parties is different and separate, then, whether order 2, Rule 2 of the CPC shall be a bar for the subsequent suit has already been clarified by the Hon'ble Courts in the ratio of the following decisions:
I. 2020 (1) Civil Court Cases 228 (H.P.): Jeet Ram & Others Vs. Kanshi Ram (since deceased) Through his LRs Dharam Pal & Others.
Order 2, Rule2--Bar of Order 2, Rule 2 CPC-- Cause of action for the two suits different and distinct--Evidence to Page 9 of 15 RSA No.312 of 2004 {{ 10 }} support the relief in two suits also different--Provision of Order 2, Rule 2 CPC does not apply.
II. 2016 (2) Civil Court Cases 670 (Uttarakhand):Shaheed Vs. Sayeed & Others.
Order 2, Rule2--Bar of Order 2, Rule 2 CPC -- When two suits are based on different causes of action, bar under Order 2, Rule2 CPC, does not apply.
III. 2020 (1) Civil Court Cases 820 (Delhi): Masyc Projects Pvt.
Ltd. Vs. Nilachal Iron and Power Ltd.
Order 2, Rule2--Bar of Subsequent suit--Cause of action in both the suits are different, subsequent suit for recovery not barred under Order 2, Rule2 CPC.
IV. 2021 (2) Civil Court Cases 671 (SC): B. Santoshamma & Another Vs. D. Sarala & Another (Para No.93) Order 2, Rule2--Bar under Order 2, Rule2 CPC-- Plea of bar under Order 2, Rule2 CPC is a technical plea, which has to be pleaded and satisfactorily be established. V. 2017 (3) CCC 19 (SC):Bapusaheb Chimasaheb Naik Nimbalkar (dead through LRs) & Another Vs Mahesh Vijaysinha Rajebhosale.
Order 2, Rule2--Cause of action in previous suit different from cause of action in present suit, Order 2, Rule2 does not apply. When, the cause sof actions of the two suits vide T.S No.53/1992 and T.S.No.6 of 1997 are different and separate and when, evidence to support the relief in two suits are different, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it can be held that, the bar under Order 2, Rule 2 of the CPC, does not apply to the present suit vide T.S No.6 of 1997. Therefore, it is held that, the findings of the 1st Appellate Court in its Judgment and Decree passed in T.A. No.14 of 1999 about the bar of the present suit of the plaintiffs suit vide T.S. No.6 of 1997 under Order 2 Rule 2 of the CPC Page 10 of 15 RSA No.312 of 2004 {{ 11 }} is not acceptable under law. Such findings of the 1st Appellate Court are held to be redundant.
13. So far as the 2nd formulated substantial question of law i.e. whether the lower appellate court committed serious error in law in holding that, the trial court was not competent to compare the document itself and to give its findings regarding the genuineness of the sale deed in question is concerned:
When the plaintiffs are claiming their ownership over the suit plot No.565 on the basis of their inheritance and succession from their father Nadi Kalta, at the same time, the defendants are claiming their title and possession on the same by purchasing from the father of the plaintiffs i.e. Nadi Kalta through an unregistered sale deed dated 27.09.1964 vide Ext.A, to which, the plaintiffs are disputing/denying.
When at the time of answering issue No.2, the trial court after appreciating the oral and documentary evidence of both the sides has held that, the Ext.A (unregistered sale deed dated 27.09.1964 relied by the defendants regarding their purchase from the father of the plaintiffs i.e. Nadi Kalta) is not a genuine document assigning the reasons that, the so- called attesting witness of that deed vide Ext.A i.e. D.W.2 has not supported the contents of that Ext.A and there is no seal of the treasury office on the stamp papers, on which, the so-called Ext.A was written and Page 11 of 15 RSA No.312 of 2004 {{ 12 }} the scribe of that unregistered deed vide Ext.A has not been examined, though the scribe is alive and there is difference in handwritings in the pages of that so called deed vide Ext.A, but, to which, the 1st Appellate Court reversed by assigning the reasons in the Judgment and Decree passed in T.A. No.14 of 1999 that, the above findings and observations made by the trial court about the discrepancies in handwritings in different pages of the Ext.A without taking the recourse of an expert to compare the same cannot be acceptable under law.
It is the settled propositions of law that, issues of civil matters are to be decided on a balance of probabilities.
On that aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:
100 (2005) CLT 147 (SC): Sona Bala Bora & Others Vs. Jyotirindra Bhatacharjee.
Suit--Issues of Civil Matter--To be decided on a balance of probabilities.
14. As per the dictum of the aforesaid decision of the Apex Court, during the course of adjudication of the civil matters, the case of which side shall become more probable than other, the case of that side shall be acceptable under law.
15. Here in this suit/appeal at hand, when the defendants are claiming their title over suit plot No.565 on the basis of an unregistered sale deed Page 12 of 15 RSA No.312 of 2004 {{ 13 }} vide Ext.A dated 27.09.1964 denying the title of the plaintiffs on the same and when the plaintiffs have seriously disputed/denied the execution of that unregistered sale deed vide Ext.A by their father Nadi Kalta in favour of the predecessor of the defendants i..e Bida Karna, then, at this juncture, it was the duty and obligation of the defendants to establish proper execution of that unregistered sale deed by the father of the plaintiffs in favour of Bida Karna through legally admissible evidence.
When the so-called attesting witness of that deed vide Ext.A i.e. D.W.2 has not deposed about the execution of that sale deed vide Ext.A and when, the examination of the deed writer thereof has been withheld by the defendants without any explanation, though he is alive and when the plaintiffs are disputing the handwritings of the so-called scribe on that Ext.A, then, at this juncture, the findings and observations made by the trial court that, the defendants have failed to establish proper execution of that unregistered deed vide Ext.A cannot be held unreasonable.
16. Therefore, the findings and observations made by the trial court in the Judgment and Decree of the suit vide T.S. No.6 of 1997 in issue No.2 that, the defendants have failed to establish proper execution of unregistered sale deed vide Ext.A dated 27.09.1964 in respect of the suit plot No.565 by the father of the plaintiffs in favour of the predecessor of Page 13 of 15 RSA No.312 of 2004 {{ 14 }} the defendants i.e. Bida Karna have become more probable. For which, the findings and observations made by the 1st Appellate Court in its Judgment and Decree passed in T.A. No.14 of 1999 reversing the findings and observations of the trial court on the ground of comparison of the hand writings of the deed vide Ext.A by the trial court without taking the assistance of an expert for the same have become inacceptable under law, because, the above two grounds i.e. (i) non-support of the so called attesting witness of the so called deed vide Ext.A i.e. D.W.2 regarding the execution of that deed and (ii) non-examination of the scribe of that Ext.A, though the said so called scribe is alive, have become more probable for creating doubt on the proper execution of that unregistered deed vide Ext.A.
17. As per the discussions and observations made above, when the findings and observations made by the 1st Appellate Court in its Judgment and Decree passed in T.A. No.14 of 1999 for reversing the Judgment and decree passed by the trial court in T.S. No.6 of 1997 are not sustainable under law, then, at this juncture, there is justification under law for making interference with the Judgment and Decree passed by the 1 st Appellate Court in T.A. No.14 of 1999 through this 2 nd Appeal filed by the appellants (plaintiffs).
Page 14 of 15 RSA No.312 of 2004
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18. As such, there is merit in the appeal of the appellants (plaintiffs), the same must succeed.
19. In the result, the 2nd Appeal filed by the appellants (plaintiffs) is allowed on contest, but without cost.
The Judgment and Decree dated 12.04.2004 and 30.04.2004 respectively passed by 1st Appellate Court in T.A. No.14 of 1999 are set aside.
The Judgment and Decree dated 22.03.1999 and 12.04.1999 respectively passed by the trial court in T.S. No.6 of 1997 are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:06.04.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 06-Apr-2024 15:36:11 Page 15 of 15 RSA No.312 of 2004