Orissa High Court
Ambika Prasad Dhall (Dead) & Others vs Jayatri Pradhan (Dead) & Others on 30 July, 2024
ORISSA HIGH COURT : CUTTACK
S.A. No.128 of 1996
In the matter of an appeal under Section 100 C.P.C, 1908.
***
Ambika Prasad Dhall (dead) & Others ... Appellants.
-VERSUS-
Jayatri Pradhan (dead) & Others ... Respondents.
Counsel appeared for the parties:
For the Appellants : Mr. D.P. Mohanty, Advocate.
For the Respondents : Mr. S. Mahanta, Advocate
Appearing on behalf of
Mr. N.P. Pattnaik, Advocate.
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Dates of Hearing : 10.07.2024 :: Date of Judgment : 30.07.2024 J UDGMENT ANANDA CHANDRA BEHERA, J.--
1. This 2nd Appeal has been preferred against the confirming Judgment. S.A. No.128 of1996 Page 1 of 15
2. The appellants of this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.15 of 1981 and they were the appellants before the First Appellate Court in the 1st Appeal vide T.A. No.26 of 1989.
The respondents of this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.15 of 1981 and they were the respondents before the First Appellate Court in the 1 st Appeal vide T.A. No.26 of 1989.
The suit of the plaintiffs vide T.S. No.15 of 1981 before the Trial Court against the defendants was a suit for declaration, confirmation of possession and permanent injunction.
3. As per the case of the plaintiffs against the defendants, the suit properties were originally belonged to one Iswar Subudhi Ratna (father of the defendant No.2) and Narayan Pradhan (husband of the defendant No.1). The father of the plaintiff Nos.1 and 2 i.e. Mahadeba Prasad Dhal was appointed as "Khamari" under the Ex-Ruler of Talcher. The Ex-Ruler of Talcher resumed the suit properties from Iswar Subudhi Ratna and Narayan Pradhan and after resuming the suit properties from them, the Ex-Ruler of Talcher inducted father of plaintiff Nos.1 & 2 i.e. Mahadeba Prasad Dhal as the tenant of the suit properties in the year 1942 and since then he (Mahadeba Prasad Dhal) was cultivating the suit properties under the Ex- S.A. No.128 of1996 Page 2 of 15 Ruler of Talcher. Thereafter, he (Mahadeba Prasd Dhal) applied before the Ex-Ruler of Talcher for settlement of the suit properties in his favour. After accepting the said application of Mahadeba Prasad Dhal (father of the plaintiff Nos.1 & 2), the Ex-Ruler of Talcher settled the suit properties in his favour on annually rent basis Rs.135-11-2 pie. On the basis of such settlement of the suit properties in favour of Mahadeba Prasad Dhal, he (Mahadeba Prasad Dhal) was in peaceful possession over the suit properties till his death and after the death of Mahadeba Prasad Dhal, the suit properties left by him (Mahadeba Prasad Dhal) devolved upon his successors i.e. plaintiffs and accordingly, the plaintiffs being the successors of Mahadeba Prasad Dhal continued their ownership and possession over the suit properties till the coming into force of Orissa Estate Abolition Act. But, while the matter stood thus, the defendants included the suit properties in a ceiling proceeding initiated against them under OLR Act, 1960 stating that, they (defendants) are the owners of the suit properties, to which, the plaintiffs objected. Then after adjudication, the suit lands were excluded from the ceiling proceeding. Thereafter, the defendants forcibly cut and removed the standing crops raised by the plaintiffs in the suit properties. For which, a proceeding under Section 145 of the Cr.P.C. was initiated between the parties in respect of the suit properties and the suit properties were S.A. No.128 of1996 Page 3 of 15 attached under Section 146 (1) of the Cr.P.C. in that proceeding and after attaching the suit properties in the proceeding under Section 145 of the Cr.P.C., the Executive Magistrate directed the parties to take shelter before the court of law in order to establish their right, title and interest over the suit properties. Then, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.15 of 1981 praying for declaration of their right, title and interest over the suit properties and to confirm their possession on the same and for permanent injunction against the defendants in order to restrain them (defendants) from creating any sort of disturbance in their peaceful possession over the suit properties.
4. Having been noticed from the Trial Court in the suit vide T.S. No.15 of 1981, the defendants contested the same by filing their written statement denying the allegations alleged by the plaintiffs in their plaint against them (defendants) taking their stands inter alia therein that;
The suit properties belong to them (defendants) and they are in continuous possession over the same since the time of their predecessors i.e. Iswar Subudhi Ratna & Narayan Pradhan. They (defendants) denied the claim of title and possession of the plaintiffs over the suit properties and they also denied about the resumption of the suit properties by the Ex-Ruler of Talcher as stated by the plaintiffs in their plaint and also denied about S.A. No.128 of1996 Page 4 of 15 the settlement of the suit properties in favour of the predecessor of the plaintiffs i.e. Mahadeba Prasad Dhal by Ex-Ruler of Talcher and payment of rent by him for the same.
The specific plea/case of the defendants was that, the suit properties have been recorded in their names in the last settlement and they have been paying the rent for the same to the Government regularly. In the ceiling proceeding under OLR Act, the local Tahasildar had included the suit properties along with their other properties. Though, the plaintiffs had objected to the said inclusion of suit properties, but, the Tahasildar rejected their objection, treating the suit properties as the properties of the defendants. For which, the plaintiffs filed the suit. But, the suit of the plaintiffs is barred under the provisions of Section 67 of the OLR Act, 1960. As such, the plaintiffs have no manner of right, title, interest and possession over the suit properties, but, they (defendants) are the owners and in possession over the same, for which, the suit of the plaintiffs is liable to be dismissed against them (defendants) with cost.
5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 4 numbers of issues were framed by the Trial Court in the suit vide T.S. No.15 of 1981 and the said issues are: S.A. No.128 of1996 Page 5 of 15
ISSUES
1. Whether the plaintiffs have title over the suit properties and they (plaintiffs) have perfected their title by adverse possession?
2. Whether the order passed by the Ruler of the Ex-State of Talcher in respect of grant of suit land to late Mahadeba Prasad Dhal is valid and creates title in him?
3. Whether the suit is hit by O.L.R. Act and Orissa Survey and Settlement Act?
4. Whether the suit is barred by non-joinder of necessary parties and law of limitation?
6. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, they (plaintiffs) examined their witnesses from their side and relied upon some documents.
On the contrary, in order to defeat/nullify the suit of the plaintiffs, they (defendants) had also examined witnesses on their behalf and relied upon documents from their side.
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court decreed the suit of the plaintiffs vide T.S. No.15 of 1981 and declared the right, title, interest and possession of the plaintiffs over the suit properties and injuncted the defendants from interfering into the possession of the plaintiffs over the suit properties as per its Judgment and Decree dated 07.05.1985 & 22.05.1985 respectively.
S.A. No.128 of1996 Page 6 of 15
8. On being dissatisfied with the aforesaid Judgment and Decree dated 07.05.1985 & 22.05.1985 respectively passed by the Trial Court in T.S. No.15 of 1981 in favour of the plaintiffs and against the defendants, the defendants challenged the same by preferring the 1st Appeal vide T.A. No.18 of 1985 being the appellants against the plaintiffs arraying them (plaintiffs) as respondents.
After hearing from both the sides, the First Appellate Court allowed that 1st Appeal vide T.A. No.18 of 1985 of the defendants on contest with cost as per its Judgment dated 21.11.1988 and remanded the matter i.e. suit vide T.S. No.15 of 1981 to the Trial Court i.e. to the Court of learned Sub- Judge, Talcher for a fresh disposal of that suit vide T.S. No.15 of 1981 by giving an opportunity to the plaintiffs to implead the legal heirs of Iswar Subudhi Ratna and Narayan Pradhan and to dispose of that suit vide T.S. No.15 of 1981 afresh according to law.
Accordingly, after remand, the Trial Court proceeded with the fresh trial of the suit vide T.S. No.15 of 1981 in compliance to the aforesaid directions given by the 1st Appellate Court in its Judgment dated 21.11.1988 in T.A. No.18 of 1985 impleading the legal heirs of Iswar Subudhi Ratna and Narayan Pradhan as parties and took fresh evidence from both the sides. After closure of evidence and arguments of both the sides and after S.A. No.128 of1996 Page 7 of 15 appreciating the materials and evidence available in the record in fresh trial after remand, the Trial Court dismissed the suit vide T.S. No.15 of 1981 of the plaintiffs on contest against the defendants as per its Judgment and Decree dated 30.09.1989 and 24.10.1989 respectively assigning the reasons that, the plaintiffs could not able to establish the resumption of the suit properties by the Ex-Ruler of Talcher from the predecessors of the defendants and handing over the possession of the same to the father of the plaintiffs and settlement of the same in the name of the father of the plaintiffs, but whereas, the documents on behalf of the defendants i.e. Ext.H (Order Sheet passed in OLR Case No.31 of 1974) and Ext.J (the RoR/Khatiyan of the suit properties in favour of the defendants) show that, the Government has recognized/accepted the ownership and possession of the predecessors of the defendants as well as defendants over the suit properties, for which, the plaintiffs have no right, title, interest & possession over the suit properties. That apart, and due to rejection of the claim of the plaintiffs in the ceiling proceeding under OLR Act, 1960 vide OLR Case No.31 of 1974 (as per Ext.H) in respect of the suit properties, the suit of the plaintiffs is hit and bar under Section 67 of the OLR Act, 1960. For which, the plaintiffs are not entitled for any relief in respect of the suit properties against the defendants.
S.A. No.128 of1996 Page 8 of 15
9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiffs vide T.S. No.15 of 1981 passed by the Trial Court on dated 30.09.1989 and 24.10.1989 respectively, they (plaintiffs) challenged the same by preferring the 1st Appeal vide T.A. No.26 of 1989 being the appellants against the defendants arraying them (defendants) as respondents.
After hearing from the both the sides, the First Appellate Court dismissed that 1st Appeal vide T.A. No.26 of 1989 of the plaintiffs on contest as per its Judgment & Decree dated 11.03.1996 & 23.03.1996 respectively concurring/accepting the findings and observations made by the Trial Court in its Judgment & Decree dated 30.09.1989 & 24.10.1989 respectively passed in T.S. No.15 of 1981 through its fresh trial after remand.
10. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide T.A. No.26 of 1989 of the plaintiffs passed on dated 11.03.1996 & 23.03.1996 respectively by the 1st Appellate Court, they (plaintiffs) challenged the same by preferring this 2nd Appeal being the appellants against the defendants arraying them (defendants) as respondents.
11. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. S.A. No.128 of1996 Page 9 of 15 When the suit was once decreed and the appellate court remanded the same on a particular issue without touching the other findings, then whether, it is open for the trial court to treat the remand as an open one, for re-
assessment of the evidence, differing with the earlier findings in the Judgment prior to remand as per the decision of the Apex Court reported in AIR 1971 SC 2177 (Mohan Lal Vs. Anadi Bai & Others)?
12. I have already heard from the learned counsels of both the sides.
13. In order to assail the Judgment and Decree passed by the Trial Court and First Appellate Court, the learned counsel for the appellants (plaintiffs) contended that, even after remand of the suit vide T.S. No.15 of 1981 for its trial afresh, the findings and observations made by the Trial Court in favour of the plaintiffs in its earlier Judgment and Decree in decreeing the suit of the plaintiffs in their favour were not set aside by the First Appellate Court in its Judgment passed in T.A. No.18 of 1985. For which, in view of the ratio of the Apex Court between Mohan Lal Vs. Anadi Bai & Others reported in AIR 1971 SC 2177, the Trial Court in its subsequent Judgment after remand should not have dismissed the suit of the plaintiffs by taking the findings and observations in its earlier Judgment in favour of the plaintiffs into account. To which, the learned counsel for the respondents (defendants) vehemently objected contending that, as per the Judgment passed by the First Appellate Court in T.A. No.18 of 1985 filed by the S.A. No.128 of1996 Page 10 of 15 plaintiffs, the said appeal was allowed on contest and the matter i.e. suit vide T.S. No.15 of 1981 was remanded to the Trial Court for its fresh disposal by giving opportunities to the plaintiffs to implead the LRs of Iswar Subudhi Ratna and Narayan Pradhan and to dispose of the suit vide T.S. No.15 of 1981 afresh by the Trial Court according to law. Therefore, in view of the above direction given by the 1st Appellate Court for fresh trial of the suit vide T.S. No.15 of 1981 by the Trial Court after impleading necessary parties i.e. the LRs of Iswar Subudhi Ratna and Narayan Pradhan, the entire earlier Judgment and Decree of the Trial Court in T.S. No.15 of 1981 had become inoperative under law. For which, according to him, after remand of the suit vide T.S. No.15 of 1981 for fresh trial, the previous Judgment passed by in that suit by that Court (Trial Court) had no use at all.
14. As per the meaning provided in the law Lexicon, trial afresh of a suit means "de novo trial or retrial of the suit for the second time."
The law concerning the acceptance of the meanings provided in the dictionary including in the Law Lexicon has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:
I. AIR 1977 (NOC) 164 (GAUHATI):State of Assam Vs. Prakritish Chandra Barua & Others.
Interpretation of Statutes--Resort to Dictionary meaning-- When permissible--The court should resort to Dictionary meaning of words, only in the absence of any guidance from the Act itself or from any judicial authority.S.A. No.128 of1996 Page 11 of 15
II. (1999) 1 SCC 566:Municipal Board, Saharanpur Vs. Imperial Tobacco of India Limited & Another. Interpretation of Statutes--External aids--Dictionary meaning--Where word or words are not defined in the statute, dictionary meaning or common parlance meaning has to be resorted to.
III. (2001) 5 SCC 593:Union of India & Others Vs. Harjeet Singh Sandhu.
Interpretation of Statutes--External aids--Dictionary meaning--When a word is not defined in the Act itself, reference to dictionaries to find out common parlance meaning permissible.
It is the settled propositions of law that, powers and jurisdiction of the lower court to deal with the suit, after remand, depends on the specifications of the remand order and when the order of remand lays down the limits for the enquiry to be made by the lower court, the lower court has no jurisdiction to enter into any question which falls outside those limits.
15. As per the Judgment passed by the First Appellate Court in T.A. No.18 of 1985, the First Appellate Court had remanded the suit vide T.S. No.15 of 1981 to the Trial Court in order to decide the same afresh (de- novo, as per the meaning of the Law Lexicon) by giving direction to the plaintiffs to implead the LRs of Iswar Subudhi Ratna and Narayan Pradhan and to dispose of that suit vide T.S. No.15 of 1981 afresh according to law. Then, after remand, the legal heirs of Iswar Subudhi Ratna and Narayan Pradhan were impleaded as parties in the suit vide T.S. No.15 of 1981 and S.A. No.128 of1996 Page 12 of 15 thereafter, both the parties had adduced fresh evidence from their respective sides and on hearing arguments from both the sides and after appreciating the materials on record and evidence of both the sides, the trial court passed fresh Judgment and Decree in that suit vide T.S. No.15 of 1981 on dated 30.09.1989 & 24.10.1989 respectively in dismissing the suit of the plaintiffs on contest against the defendants without taking the findings and observations made by the Trial Court in its earlier Judgment (prior to its remand) into account.
16. The law regarding the effect of impletion of the parties in a suit has already been clarified by the Hon'ble Courts in the ratio of the following decision:
59 (1985) CLT 552 & 1985 (2) OLR NOC 1: Palia Bewa & Parbati Kumari Mohapatra & Others:CPC 1908--Order 1, Rule 10--Impletion--Effect of impletion in pending suit, so far as the new defendant is concerned, the case must be taken to be begun afresh.
When, the First Appellate Court had remanded the suit vide T.S. No.15 of 1981 for its trial afresh (de novo) by impleading the LRs of Iswar Subudhi Ratna and Narayan Pradhan and when after remand, the LRs of Iswara Subudhi Ratna and Narayan Pradhan were impleaded, then, in view of the propositions of law enunciated in the ratio of the aforesaid decision, the trial of the suit vide T.S No.15 of 1981 had commenced afresh (de novo) S.A. No.128 of1996 Page 13 of 15 after its remand through impletion of LRs of Iswara Subudhi Ratna and Narayan Pradhan and fresh evidence was taken from both the sides ignoring the earlier evidence prior to its remand, as the earlier evidence and Judgment prior to its remand had become inoperative as per the specifications made in the remand order by the First Appellate Court in its Judgment passed in T.A. No.18 of 1985, as the specific direction was given to the Trial Court for the trial of the suit vide T.S. No.15 of 1981 afresh (de novo).
Therefore, in view of the above specifications made in the remand order of the 1st Appellate Court in the Judgment passed in T.A. No.18 of 1985, the decision of the Apex Court relied by the learned counsel for the appellants reported in AIR 1971 SC 2177 has become inapplicable to the suit/appeal at hand on facts for the reasons assigned above.
17. So, due to the inapplicability of the ratio of the decision of the Apex Court reported in AIR 1971 SC 2177 to the suit/appeal at hand on facts as discussed above, there is nothing to interfere with the concurrent findings arrived by the Trial Court and First Appellate Court in dismissing the suit of the plaintiffs (appellants of this 2nd Appeal) through this 2nd Appeal filed by the appellants (plaintiffs).
S.A. No.128 of1996 Page 14 of 15
18. Therefore, there is no merit in the 2nd Appeal filed by the appellants (plaintiffs). The same must fail.
19. In result, the 2nd Appeal filed by the appellants (plaintiffs) is dismissed on contest against the respondents (defendants), but without cost.
19. The Judgments and Decrees passed by the Trial Court and First Appellate Court in T.S. No.15 of 1981 & T.A. No.26 of 1989 respectively in dismissing the suit of the plaintiffs are confirmed.
(ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 30th July, 2024// Rati Ranjan Nayak Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India.
Date: 12-Aug-2024 16:53:44S.A. No.128 of1996 Page 15 of 15