Orissa High Court
Jagannath Sahoo And Others vs Banambar Sahoo And Others on 28 August, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.192 of 1992
From the judgment and decree dated 15.05.1992 and 06.07.1992
respectively passed by Shri N.B.K. Murty, learned subordinate Judge,
Jagatsinghpur in T.A. No. 06 of 1984 affirming the judgment and
decree dated 02.03.1984 and 15.03.1984 respectively passed by
Shri K.B. Sahoo, learned Munsif, Jagatsinghpur in T.S. No. 104 of
1980.
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Jagannath Sahoo
& others .... Appellants
Versus
Banambar Sahoo
& others .... Respondents
For Appellants ... Mr. Bijan Ray, Senior Advocate
along with Mr. D. Chhotray
For Respondents ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing and judgment: 28.08.2017
DR.A.K.RATH, J.This is a defendants' appeal against an affirming judgment.
02. The dispute pertains to grazing of cattle of defendants' village over Gochar land of plaintiffs' village. The case of the plaintiffs is that they are residents of village Ratisingha. The defendants are 2 the residents of village Katijanga. Both are adjoining villages. There are about 14.98 acres of Gochar land in the village Ratisingha, which are only assessable to the cattle belonging to the plaintiffs' village. An area of Ac.12.00 inundated in water during rainy season and unfit for grazing of cattle. Ac.6.26 acres of Gochar land is available in defendants' mouza Katijanga for grazing of cattle. Since time immemorial, the cattle of the respective villages are grazing in the Gochar and Godanda lands in the respective villages. The Gochar and Godanda lands of Ratisingha mouza are kept for the pasturage of the cattle of that mouza alone. The plaintiffs and their villagers have been using the Gochar lands of their mouza as grazing ground openly, peacefully and without interruption for long over 50 years and as such acquired indefeasible right of exclusive user. It is further pleaded that the defendants and some of their co-villagers made an unholy combine and wanted their cattle to graze on the suit land of the plaintiffs' village. The plaintiffs protested their action on the ground that their own cattle would starve, if the cattle of other mouzas graze in their Gochar land. The plaintiffs requested the defendants not to interfere in the right of their user of Gochar land but in vain. With this factual scenario, they instituted T.S. No. 104 of 1980 in the court of the learned Munsif, Jagatsinghpur for declaration that the defendants have no right to graze their cattle on the Gochar and Godanda lands of the plaintiffs' village and for permanent injunction.
03. The defendant nos.1, 2, 4 to 7 filed a joint written statement denying assertions made in the plaint. The case of the defendants is that there are about Ac.60.00 acres of rakhit, sarbasadharan, anabadi and other communal lands, which are fit for grazing. Both the villages are adjacent to each other. The Gochar 3 lands of village Katijanga are unfit for grazing purposes. The plaintiffs wanted to cultivate some portions of the grazing ground of the village to which the defendants vehemently protested. The villagers of Katijanga are grazing their cattle as of right since time immemorial without obstruction and have acquired customary right. The State of Orissa is the owner of the suit land. State has not been impleaded as party to the suit and as such suit is not maintainable.
04. The defendant nos.8 & 9 filed a written statement stating therein that one Nath Sahoo and defendant no.8 has got about two acres of cultivable land in the suit village. The defendant no.9 belongs to village Alikanta, which is an adjacent village of the plaintiffs. They have right to graze their cattle over the suit land. The cattle of the village of the plaintiffs as well as the villagers of the defendants used to graze in the suit land since time immemorial. The defendants acquired customary right of grazing their cattle over the suit Gochar land. The villagers of the suit village have no exclusive right to graze their cattle on the suit land.
05. On the inter se pleadings of the parties, the learned trial court struck five issues. Both the parties led evidence, oral and documentary, to substantiate their cases. The learned trial court came to hold that the suit is maintainable. The State of Orissa is neither a proper party nor a necessary party. The defendants have not proved their customary right of grazing of cattle of village Katijanga over the suit schedule land. Held so, it decreed the suit. The defendants unsuccessfully challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Jagatsinghpur in T.A. No.06 of 1984, which was eventually dismissed.
406. The second appeal was admitted on the following substantial questions of law:-
"1.Whether the judgment and decree of the court below are vitiated for non-compliance of mandatory provisions of Order 1, Rule 8 CPC ?
02. Whether such a suit is maintainable without impleading the State of Orissa as a party when the plaintiff has pleaded that the suit land is recorded as Gochar ?"
07. Heard Mr. Bijan Ray, learned Senior Advocate along with Mr. D. Chhotray, learned counsel for the appellants. None appears for the respondents.
08. The plaintiffs assert that the nature of suit schedule land is Gochar. Thus the State of Orissa is paramount owner of the land. The suit was instituted by the villagers in the representative capacity. Admittedly no notice under Order 1 Rule 8 CPC was issued. In Bhagabat Jena & others vs. Gobardhan Patnaik & others, 54 (1982) C.L.T. 30, the suit was instituted for correction of settlement entries and for declaration of a customary right. No right was claimed against the State of Orissa. The plaintiffs did not allege that their customary right was being resisted by the State of Orissa. Neither party challenged the proprietory right of Government in the suit land. This Court held that in the absence of the State Government an effective decree can be passed so as to bind the parties and the suit will not fail in the absence of the State of Orissa. It was further held that though the plaintiffs were permitted to sue as representatives of village Beruan, no notice was served on the inhabitants of that village and no public advertisement was also made. Consequently, the villagers of Beruan had no opportunity of knowing whether any such suit had been instituted and who had been selected to represent them 5 in the suit. Thus there was non-compliance of the mandatory provisions of Order 1 Rule 8 CPC. A representative suit cannot be said to have been validly instituted unless and until the mandatory provisions of Order 1 Rule 8 CPC are complied with. It is only when action is taken under Order 1 Rule 8 CPC that the suit is properly brought against the defendants.
09. In Purna Chandra Panigrahi v. Baidya Jani, reported in Vol-74 (1992) C.L.T. 309, a Division Bench of this Court held that the provisions of Order 1, Rule 8 CPC are mandatory in nature. Notice under Order 1, Rule 8 (2) CPC is an essential pre-condition for trial of the suit. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The object for which Order 1, Rule 8, CPC has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate suit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole.
10. The ratio of the decision cited supra proprio vigore applies to the facts of the case. It is a fit case to be remanded to the original form to the stage of issuance of notice under Order 1 Rule 8 CPC. The substantial questions of law are answered accordingly.
611. Resultantly, the impugned judgments are set aside. The suit is remanded to the stage of issuance of notice under Order 1 Rule 8 CPC. There shall be no order as to costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 28th August, 2017/Puspanjali