Orissa High Court
Procedure vs Pitambar Senapati on 5 February, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.522 of 2004
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Sobhorani Grahacharya .... Appellant
-versus-
Pitambar Senapati .... Respondent
Appeared in this case:-
For Appellant : Ms. S. Das, Advocate appearing
on behalf of Mr. P.K. Satapadhy,
Advocate
For Respondent : None
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 02.01.2024 / date of judgment :05.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment.
2. The appellant of this 2nd appeal was the plaintiff before the trial court in the suit vide T.S. No.21 of 1985 and he was the appellant in the 1st appeal vide T.A. No.46 of 1992.
The respondent of this 2nd appeal was the defendant before the trial court in the suit vide T.S. No.21 of 1985 and he was the respondent in the 1st appeal vide T.A. No.46 of 1992.
// 2 // The suit of the plaintiff vide T.S. No.21 of 1985 was a suit for declaration of right, title and interest of the plaintiff over the suit properties, confirmation her possession thereon and for permanent injunction against the defendant.
3. The case of the plaintiff before the trial court in the suit vide T.S. No.21 of 1985 as per the averments made in her plaint in short was that, the suit properties were originally belonged to the defendant. The defendant sold the suit properties to her (plaintiff) by executing and registering a sale deed on 07.01.1985 for a consideration money of Rs.2,000/- and delivered possession of the suit properties to her on its next day. At the time of execution of the sale deed on 07.01.1985, it was agreed between him (plaintiff) and defendant that, she (plaintiff) will pay the consideration amount of the sale deed, i.e., Rs.2,000/- at the time of receiving the registration ticket of the sale deed from the defendant. Thereafter, out of the consideration amount, i.e., Rs.2,000/- the husband of the plaintiff paid Rs.1300/- to the defendant in presence of their villagers, namely, Krushna Chandra Mishra, Krupasindhu Panigrahi and others on the next day of registration, i.e., on 08.01.1985 and the defendant was agreed to hand over the registration ticket of the sale deed after receiving the rest consideration amount of the sale deed, i.e., Rs.700/-. Thereafter, the plaintiff and her husband offered the rest consideration of amount, i.e., Rs.700/- to the defendant on various occasions and asked the defendant to hand over the registration ticket of the sale deed, but, the defendant avoided to provide the same by taking various pleas. Thereafter, the plaintiff sent Advocate notice to the defendant requesting him (defendant) to hand over the registration ticket of the sale deed after receiving the balance consideration of amount from her (plaintiff), but, the defendant disclosed before the plaintiff that, on 01.02.1985 that, he (defendant) has cancelled the above sale deed, which // 3 // was executed on 07.01.1985 through a deed of cancellation and threatened to disposses the plaintiff from the suit properties. For which, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.21 of 1985 being the plaintiff against the defendant praying for declaration of her right, title and interest over the suit properties and for confirmation of her possession thereon and also for permanent injunction against the defendant in order to restrain the defendant permanently from interfering into the plaintiff's possession over the suit properties.
4. Having been noticed from the trial court in T.S. No.21 of 1985, the defendant contested the suit of the plaintiff by filing his written statement denying the above averments made by the plaintiff in her plaint by taking his stands therein that, he(defendant) has his own dwelling house and stationary shop over the suit properties. The suit properties are their undivided family dwelling house, in which, he (defendant) and his brother Chintamani Senapati have joint share. He (defendant) had never given any proposal for selling the suit properties to the plaintiff. He (defendant) along with his co-sharer Chintamani Senapati were/are all along in possession over the suit properties. They are possessing the suit properties jointly within one enclosure. Further, case of the defendant was that, the father-in-law of the plaintiff told him (defendant) to expand his stationary shop business by investing more capital, for which, the father-in-law of the defendant suggested him (defendant), to avail loan of Rs.2,000/-from his son (husband of the plaintiff) by executing a conditional deed in respect of his cultivable land in favour of his son, as a security of that loan. After, accepting the said proposal of the father-in- law of the plaintiff, he (defendant) executed a deed in favour of the wife of his son, i.e., plaintiff on dated 07.01.1985 with an impression and belief about the execution of a conditional deed, such as mortgage deed // 4 // in respect of his half share in their joint cultivable land, i.e., in respect of Ac.0.08 decimals out of Ac.0.16 decimals in Plot No.3056. But, even after execution of that deed in favour of the plaintiff, her husband avoided the payment of the agreed loan amount, i.e., Rs.2,000/- by taking various pleas. Thereafter, the defendant came to know that, the plaintiff, her husband and her father-in-law have managed to obtain a registered sale deed from him (defendant) in respect of his homestead land(which is the suit land), instead of a conditional deed (mortgage deed) in respect of his half share in the agricultural land vide Plot No.3056. So, the defendant went to the Sub-Registrar Office and came to know about the above mischief played by the plaintiff with the assistance of her husband and father-in-law. Then, he (defendant) cancelled the said deed dated 07.01.1985 in respect of the suit properties by executing and registering a deed of cancellation. Therefore, the plaintiff has not acquired any right, title, interest and possession over the suit properties by virtue of the above so-called sale deed dated 07.01.1985, because, that deed is a sham deed. Therefore, the defendant claimed for dismissal of the suit of the plaintiff against him(defendant) with costs.
5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the trial court in T.S. No.21 of 1985 and the said issues are:-
ISSUES
1. Has the plaintiff any cause of action?
2. Has the plaintiff acquired any right, title and interest over the suit land?
3. Is the sale deed dated 07.01.1985 tainted with fraud and want of consideration?
4. Is the suit properly valued?
5. To what other reliefs?
// 5 //
6. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant, she (plaintiff) examined three witnesses from her side including herself as P.W.1 and relied upon the documents vide Exts.1 to 4. But, on the contrary, the defendant examined four witnesses on his behalf including him as D.W.1 and exhibited series of document from his side vide Exts. A to Z.
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue Nos.2, 3 and 4 against the plaintiff and in favour of the defendant and basing upon the findings and observations made by the trial court in issue Nos.2, 3, and 4 against the plaintiff and in favour of the defendant, the trial court dismissed the suit of the plaintiff vide T.S. No.21 of 1985 on contest against the defendant as per its judgment and decree dated 08.05.1992 and 23.06.1992 respectively by giving its findings in the issue Nos.2, 3 and 4 that, the deed bearing No.30 dated 07.01.1985 vide Ext.1 said to have been executed by defendant in favour of the plaintiff indicating the suit properties is void one, by which, no title over the suit properties has been passed from the defendant to the plaintiff, because, the plaintiff with the help of her husband and father-in-law has committed fraud intentionally misrepresenting the conditions of the deed dated 07.01.1985 vide Ext.1 to the defendant and the defendant had executed that deed vide Ext.1 with an impression and belief about the execution of a mortgage deed in respect of his half share in their agricultural land vide Plot No.3056 as a security to secure loan from the husband of the plaintiff, but, the plaintiff being associated with her husband and father-in-law has managed to execute and register that deed vide Ext.1 in respect of his house and homestead land fraudulently instead of his half share in the cultivable land vide Plot No.3056.
// 6 //
8. On being dissatisfied with the aforesaid judgment and decree of dismissal of the suit of the plaintiff vide T.S. No.21 of 1985 on contest against the defendant passed on dated 08.05.1992 and 23.06.1992 respectively by the trial court, she (plaintiff) challenged the same by preferring the 1st appeal vide T.A. No.46 of 1992 being the appellant against the defendant by arraying him(defendant) as respondent.
9. After hearing from the sides, the 1st appellate court dismissed the 1st appeal vide T.A. No.46 of 1992 of the plaintiff against the defendant as per its judgment and decree dated 17.08.2004 and 24.08.2004 respectively and confirmed to the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.21 of 1985 passed by the trial court assigning the reasons that, as the plaintiff herself has stated in her evidence as P.W.1 before the trial court that, "she had claimed the suit land in the consolidation court, but the same was refused" and when that order of the consolidation authorities against the plaintiff has not been challenged before any statutory higher forums of the consolidation by the plaintiff, then the adjudication made by the consolidation authorities in respect of the suit properties disregarding the claim of title of the plaintiff over the suit properties has already been reached in its finality, for which, the question of re-opening to the same by the Civil Court does not arise. Therefore, the plaintiff is not entitled for the reliefs prayed for by her in the suit and accordingly, the 1st appellate Court accepted to the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.21 of 1985 passed by the trial court.
10. On being aggrieved with the aforesaid judgment and decree of dismissal of the 1st appeal vide T.A. No.46 of 1992 of the plaintiff passed by the 1st appellate court on dated 17.08.2004 and 24.08.2004 respectively, she (plaintiff) challenged the same by preferring this 2nd // 7 // appeal being the appellant against the defendant by arraying him (defendant) as respondent.
11. This 2nd appeal was admitted on formulation of the following substantial question of law :-
Whether the judgment and decree passed by the court below dismissing the suit of the plaintiff for declaration of right, title, interest and conformation of possession over the suit properties is sustainable under law on the basis of the decisions made by the consolidation authorities in favour of the defendant during the pendency of the suit without abating the suit as per Section 4 of OCH and PFLA Act, 1972?
12. I have already heard from the learned counsel for the appellant(plaintiff) only, as none appeared from the side of the respondent(defendant).
13. It appears from the judgment and decree of the 1st appellate court as well as from the evidence of the appellant(plaintiff, P.W.1) that, she (plaintiff, P.W.1) has deposed in the last sentence of her deposition by answering the questions of the learned counsel for the plaintiff that, "she had claimed the suit land in the Consolidation Court, but, the same was refused."
14. It is forthcoming from the Ext.F that, the claim of right, title, interest and possession of the parties over the suit properties has already been adjudicated by the Consolidation Authorities and on adjudication of the same by the Consolidation Authorities, the claim of title of the plaintiff over the suit properties on the basis of the so-called sale deed No.30 dated 07.01.1985 vide Ext.1 has been discarded/refused holding that, the defendant is the lawful owner of the suit properties.
15. In spite of rejection of the claim of the plaintiff by the consolidation authorities as per Ext.F for recording the suit properties in her name as owner thereof on the basis of the deed No.30 dated 07.01.1985 vide Ext.1, she (plaintiff) has not challenged the same before // 8 // any statutory higher forums of the Consolidation. But, without challenging the same before any statutory higher forums of the Consolidation, she (plaintiff) has approached the civil court by filing the suit vide T.S. No.21 of 1985 against the defendant praying for declaration of her right, title, interest and possession over the suit properties in order to set aside the decision of the Consolidation Authorities as per Ext.F indirectly.
16. Since, the Consolidation Authorities have already adjudicated the same reliefs of the plaintiff as per Ext.F, to which, she(plaintiff) has sought for, in the suit at hand having been invested with the powers to adjudicate the same, for which, the 1st appellate court had held that, the prayers of the plaintiff cannot be re-opened in the suit, because, the adjudications of the same have already been reached in its finality by the competent statutory authorities, i.e., by the Consolidation Authorities.
Therefore, the 1st appellate court confirmed to the judgment and decree of the dismissal of the suit of the plaintiff passed by the trial court.
17. The law relating to the fate of a civil suit after adjudication of the controversies between the parties by the consolidation authorities in respect of the properties covered under the suit like the present suit at hand has already been clarified by the Hon'ble Courts in the ratio of the following decisions:-
(i) 50(1980) CLT-337 (F.B.)(para-18) : Srinibas Jena(and after him) Madhabananda Jena and others vrs. Janardan Jena and others)--CPC, 1908--Section 11 read with OCH and PFL Act--Section 4--Once the parties worked out their rights before the Consolidation Authorities and exhaust their remedies under the Act, they cannot re-agitate the same questions over again in the Civil Court, those questions stand finally concluded by the decision of the Consolidation Authorities. The rule of res judicata is founded on the principle that, a matter, which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. It has, therefore, to be held that, a // 9 // decision of the Consolidation Authorities on questions of right, title and interest, which matters within their jurisdiction would operate as res-judicata and that being so, the Civil Court will have no jurisdiction to hear and decide the suit afresh.(para-18)
(ii) 74(1992) CLT-741 : Biranchi Sahu vrs. Jujesthi Sahu and others--CPC, 1908--Section 11--Res judicata--Parties work out their rights before consolidation authorities cannot re-agitate before Civil Court.
Once the parties work out their rights before the consolidation authorities, they cannot re-agitate the same question over and over again in the Civil Court and those questions stand finally concluded by the decision of the consolidation authorities. The rule of res judicata is founded on the principle that, a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re- agitated between same parties.(para-5)
(iii) 2019(1) CLR-1115 : Baishnaba Mohanty vrs. Malati Mohanty and another--CPC, 1908--Section 9--Civil suit--In absence of any prayer to set aside the order of the Commissioner, Consolidation, suit is not maintainable. (para- 12&13)
(iv) 2019(1) CLR-950 & 2019(1) OLR-795: Laxmidhar Sahu and others vrs. State of Orissa and others--CPC, 1908, Section 11--Res judicata--A decision of the consolidation authorities on the question of right, title and interest which are matters within their jurisdiction would operate as res-judicata and that being so, the Civil Courts have no jurisdiction to hear and decide the suit afresh.(para-10)
(v) 125(2018) CLT-416 : Sarat Chandra Nayak and another vrs. Rama Chandra Nayak and others --CPC, 1908--Section 11--Res judicata--Matter in issue was directly and substantial issue before the Consolidation Authorities-- Held, decision of the Consolidation authority shall operate as res judicata on the Civil Court.
(vi) 2015(1) CLR-360 : Chintamani Kandi (Dead) after him, his L.Rs. Para Dei and others vrs. Arjuna Kandi and others (para-13)--During the pendency of the second appeal, the suit land was recorded in the name of the plaintiffs in the finally published ROR of consolidation operation--Title of the plaintiff to the suit-land upheld solely basing on the consolidation RoR.(para-13 & 15)
(vii) 2003(II) OLR-16 : Mohan Biswal vrs. Sri Gopinath Dev and six others--OCH & PFL Act, 1972--Section--51-- Dispute relating to right, title, interest and liability on any land situated within the consolidation area--Jurisdiction of civil court barred.(para-4) // 10 //
(viii) 63(1987) CLT-347 : Brajakishore Panda and others vrs. Damodar Rout and others--CPC, 1908--Section 9--If Civil Court has jurisdiction to sit in judgment over the decisions of the consolidation authorities.
It is also not within the competency of the civil court to declare an order of the consolidation authorities under section 12 of the Consolidation Act as without jurisdiction, merely because, it is based upon a void order of Orissa Estate Abolition Collector. Even if the fact alleged by the plaintiffs would have been true, yet the order of the consolidation authority would not be without jurisdiction but may at best be an illegal or improper order which is available to be varied by the higher forums provided under the Consolidation Act. The civil court would have no jurisdiction to sit in judgment over the decisions of the consolidation authorities and declare those as without jurisdiction. (Para 4)
18. Here in this suit at hand, when after adjudicating the controversies between parties (those are the controversies between the parties in the present suit at hand), the Consolidation Authorities have already held as per the decision vide Ext.F that, the plaintiff has no right, title, interest and possession over the suit properties and the said order passed by the Consolidation Authorities rejecting the claim of the plaintiff has not been varied/altered or set aside by any statutory higher forums of the Consolidation and when the said decision/adjudication made by the Consolidation Authorities in respect of the same reliefs of the plaintiff in the suit at hand, has already been reached in its finality, then at this juncture, in view of the propositions of law enunciated in the ratio of the above decisions, the same cannot be re-agitated by the plaintiff again in the present civil suit. Because, the Consolidation Authorities having been invested with all the powers of the civil court have already adjudicated the same controversies between the parties as per Ext.F.
19. When the competent statutory authorities, i.e., the consolidation authorities have already adjudicated the prayers, those have been made by the plaintiff in the suit at hand as per Ext.F, then, at this juncture, the question of interfering with the dismissal of the suit of the plaintiff by the // 11 // trial court in its judgment and decree and confirmation to the same by the 1st appellate court through this 2nd appeal filed by the appellant (plaintiff) does not arise.
Therefore, there is not merit in the 2nd appeal of the appellant(plaintiff). The same must fail.
20. In the result, the 2nd appeal filed by the appellant(plaintiff) is dismissed on merit, but without cost.
21. The judgments and decrees passed by the trial court in T.S. No.21 of 1985 and as well as by the 1st appellate court in T.A. No.46 of 1992 dismissing the suit of the plaintiff vide T.S. No.21 of 1985 are confirmed.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The of February, 2024/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: PA
Reason: Authentication
Location: OHC, CUTTACK
Date: 07-Feb-2024 14:55:04