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2000 DIGILAW 313 (ORI)

SUKANANDE CATHOLIC CHURCH v. ASPATI PRADHAN

2000-06-23

P.K.MOHANTY

body2000
P. K. MOHANTY, J. ( 1 ) DEFENDANTS 1 and 2 are the appellants in the present appeal against a reversing judgment of the learned District Judge in suit for declaration of title and recovery of possession. ( 2 ) THE brief facts of the case are that the plaintiff filed a suit for declaration of right, title and interest and for permanent injunction against defendants 1 and 2. The alternative prayer was for restoration of possession in case the plaintiff and defendant Nos. 3 to 11 are found to have been dis-possessed. It was the case of the plaintiff that the suit land bearing plot Nos. 616,620,621,622 and 637 in Khata No. 14 of Kakamaha Mouza under G. Udayagiri Tahsil consisting of 2. 281 hectres which is locally called 'padripada' is the ancestral property of the plaintiff and defendant Nos. 3 to 11. The lands had been recorded in the name of defendant Nos. 3 to 10. The plaintiff and defendant No. 11 are sons of defendant Nos 3. The plaintiff and defendant Nos. 3 to 11 are in possession and enjoyment of the suit land by raising various agricultural produces on a portion of the suit land by enjoying fruits of the trees standing on the suit land. On 15-4-1981 the defendant No. 1 through defendant No. 2 forcibly entered upon the suit land; cut down the trees and started raising a compound wall around the suit land and when the plaintiff protested, defendent No. 2 threatened him to assault and gave out that he has purchased the suit land without disclosing the name of the vendor and the date of purchase. In spite of all efforts, the plaintiff could not trace out as to when and how the defendants 1and 2 acquired any right over the suit properties and hence a suit for declaration of right, title and interest in respect of the suit land in favour of the plaintiff and defendant Nos. 3 to 11 and for permanent injunction restraining defendant Nos. 1 and 2 from entering upon the suit land and for recovery of possession. ( 3 ) DEFENDANT Nos. 1 and 2, the present appellants in their written statement while denying the claim of the plaintiff pleaded that suit land was never the ancestral property of the plaintiff and defendant Nos. 3 to 11 nor they were ever in possession. 1 and 2 from entering upon the suit land and for recovery of possession. ( 3 ) DEFENDANT Nos. 1 and 2, the present appellants in their written statement while denying the claim of the plaintiff pleaded that suit land was never the ancestral property of the plaintiff and defendant Nos. 3 to 11 nor they were ever in possession. The suit property are the ancestral property of one Biswanath Pradhan and other Damenaju villagers being their Kotha lands and they were all along in possession and peaceful enjoyment of the suit land from the time of their ancestors. Some of the defendants initiated a proceeding under Sec. 145 of the Code of Criminal Procedure against one Father who was previously in charge of defendant No. 1 for which the people of Demenaju, Sudam Pradhan and others filed a suit before the Addl. Munsif, G. Udayagiri claiming the suit land to be their Kotha lands and got a decree in their favour and took delivery of possession in Execution proceeding No. 2 of 1978 and thereafter, the suit land was sold to one Cyril Pradhan on 5-2-1979 by virtue of a registered sale deed. Cyril Pradhan after taking delivery of possession from Damenaju villagers raised a compound wall around the suit land and defendant No. 2 being the representative of Cyril Pradhan is now in possession of the same since 1979. The plaintiff and defendant Nos. 3 to 11 were never in possession of the suit land and had raised no crops at any point of time. Defendant No. 2 never forcibly entered upon the suit land on 15-4-1981 as alledged cut down the trees and started construction of the compound wall. It was further pleaded that since in the previous civil suit between the Damenaju villagers and defendant Nos. 3 to 10, the plaintiff or his brother, defendant No. 11 never claimed any interest, the present suit will be barred by the principles of resjudicata. Besides the other claims, defendant Nos. 1 and 2 had further submitted that the suit is not maintainable since it is bad for mis-joinder and non-joinder of party inasmuch as the property was not valued property and as such, the plaintiff is not entitled to any relief. The suit land has been described as padar land, locally called 'padripada' measuring 2. 281 hectres bearing plot Nos. 1 and 2 had further submitted that the suit is not maintainable since it is bad for mis-joinder and non-joinder of party inasmuch as the property was not valued property and as such, the plaintiff is not entitled to any relief. The suit land has been described as padar land, locally called 'padripada' measuring 2. 281 hectres bearing plot Nos. 620,621,622,637,616 and 619 situated in mouza Kakanaha under G. Udayagiri Tahasil bounded by G. Udayagiri Tilabari Road from East, podar land of Parusram Pradhan and Biswanath Pradhan from the West, Govt. well and Bilabada village from the North and Land of Cyril Pradhan purchased from Kasipatra Pradhan and Dasarath Pradhan from the south. ( 4 ) THE learned trial Court framed as many as 11 issues of which issue No. 10 was whether the description of the suit land with its boundaries are correct. Since admittedly the suit land consisted of 2. 281 hectres situated in village Kakamaha,the learned trial court found that the boundary of the suit land and the description thereof to be correct. On issue No. 8, as to whether the suit is hit by res judicata, the learned Court found that the suit land involved in T. S. No. 4/76, T. A. No. 4/77 connecting to Execution proceeding No. 2/78 are not the same. However, it was held that approximately 11/2 acres of land involved in the previous suit was the subject matter in the previous suit and since that portion is not distinguishable, the suit presented for all the lands will operate as res judicata and accordingly it was held that the present is suit hit by res judicata. Defendants 1 and 2 were found to be the representatives of Cyril Pradhan. The sale of the suit land by the villagers of Damenaju one Cyril Pradhan was, however, held to be invalid and as such, not binding on defendants 1 and 2. On analysis of evidence of both the sides, the trial Court held that the boundary wall was constructed 11/2 years back and not more than 3 years back. On such a finding the suit was dismissed on contact against defendant Nos. 1 and 2 and ex parte against defendant 3 and11 by judgment dated 10-11-1982. On analysis of evidence of both the sides, the trial Court held that the boundary wall was constructed 11/2 years back and not more than 3 years back. On such a finding the suit was dismissed on contact against defendant Nos. 1 and 2 and ex parte against defendant 3 and11 by judgment dated 10-11-1982. ( 5 ) THE plaintiff filed an appeal as against dismissal of his suit which was registered as T. A. No. 8 of 1984 in the Court of the District Judge, Boudh-Khandamal, Jhulbani. The learned District Judge while considering the appeal formulated 3 questions for determination : (1) Whether the findings on other issues against the contesting defendants is correct? (2) Whether the present suit is barred by res judicata in view of the decision in the earlier suit (T. S. 4/76 and connected appeal No. 4/77) ? (3) Whether the plaintiff and his co-sharers have interest in the suit property and consequently they are entiled to get the reliefs prayed for ?the learned lower appellate Court on consideration of the evidence on record held that the findings recorded by the Addl. Munsif with regard to the validity of the sale deed, cannot be sustained. However, on point No. 2 as to whether the property in the present suit is the same property involved in T. S. No. 4/76 connecting to T. A. No. 4/77, he held that the suit property is the same as in the earlier suit as well as in the present suit. But however, on the question as to whether the present suit was barred by res judicata, the learned District Judge found that by the time of filing of the earlier suit, the present plaintiff was already major inasmuch as the disputed land was his ancestral property. Accordingly the plaintiff was necessary party to it but he having not been impleaded as a party thereto, his father properly not represented him. That suit being for declaration of title, consequently, the decision of that suit is not binding on the present plaintiff and the decision rendered therein cannot operate as res judicata. ( 6 ) THE learned lower appellate Court found that there was no evidence on record to show that defendants 1 and 2 are the representatives or the alleged purchasers of Cyril Pradhan. ( 6 ) THE learned lower appellate Court found that there was no evidence on record to show that defendants 1 and 2 are the representatives or the alleged purchasers of Cyril Pradhan. It was further held that the contesting defendants cannot claim the disputed property from the alleged purchaser and as such, has no connection with the said property and they are rank trespessors. ( 7 ) ON point No. 3, the learned District Judge found that the plaintiff was entitled to relief claimed against the contesting defendants 1 and 2 who are trespassers. The appeal was allowed on contest against defendants 1 and 2 and ex parte against other respondents. Hence the present second appeal by defendants 1 and 2. ( 8 ) THE learned counsel for the appellants challenges the judgment and decree passed by the learned lower appellate Court mainly on the ground that the plaintiff's suit being one for title and recovery of possession, the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title, the plaintiff's suit must fail inasmuch as the Court cannot grant decree on the weakness of defendant's case and therefore, the judgment and decree passed by the lower appellate Court is liable to be vacated. It was further pleaded that there was no material to show that the plaintiff has title and therefore, the lower appellate court should not have decreed the plaintiff's suit and thereby the Court below has committed error of law in finding that the disputed property is the ancestral property basing on the present record of rights which is yet to be published finally. It is the contention that the record of rights neither creates any right or title nor it extinguishes the same. It is the submission of the learned counsel that in absence of any document whatsoever with regard to title or with regard to possession, either documentary or oral in favour of the plaintiff or defendants 3 to 11, the court below should not have held that the suit properties are ancestral properties of the said defendant. The learned counsel strenuously argued that the suit at the instance of so called major son was not maintainable since he was bound by the decree in title Appeal No. 4/77. The learned counsel strenuously argued that the suit at the instance of so called major son was not maintainable since he was bound by the decree in title Appeal No. 4/77. In absence of any finding that the plaintiff was not the member of a joint family in as much as since defendant No. 3, the father of the plaintiff was the Karta of the family at the relevant time and contested the suit, and the appeal, the judgment and decree binds the present plaintiff. It is contended that declaration of possessary title is against the whole world except the true owner and the defendants are thus, bound by the decree. The mandatory provision of Sec. 101 of the Evidence Act was not kept in view while deciding the appeal since the burden of proof is on the plaintiff to establish his case. It is the submission of the learned counsel that a Hindu father represents the other members of the family and the decree passed against him binds his son, the present plaintiff especially when the plaintiff has established a case that his father is the Karta. The decree in the earlier suit binds the plaintiff and therefore, the present suit is barred by the principles of res judicata. It has been brought to the notice of the Court that in issue No. 6 the plaintiff had brought that defendants 1 and 2 are representatives of Cyril Pradhan, the vendee and as such, the lower appellate court cannot by-pass the concession to give a different finding. ( 9 ) THE learned counsel for the respondents, however, strongly supports the judgment of the learned District Judge and contends that the grounds taken in the second appeal being mainly of factual errors, this Court cannot go into the finding of facts recorded by the learned courts below in absence of any substantial error of law committed by them. It is the further contention that in any view of the matter, no illegality having been brought to the notice of the court, the decision is not assailable and therefore, this second appeal is to be dismissed. ( 10 ) IN course of hearing learned counsel for the appellants has brought to the notice the order dated 29-7-1986 passed by this court in Misc. ( 10 ) IN course of hearing learned counsel for the appellants has brought to the notice the order dated 29-7-1986 passed by this court in Misc. case No. 246 of 1986 and contended that since during the pendency of the appeal before the lower appellate Court, respondent No. 3 Subadara Pradhan, son of late Kenduria Pradhan died on 3-7-1984 leaving behind his son as his sole legal representative, But the plaintiff-appellant in the Court below did not substitute the legal representative of respondent No. 3 and since the decree is joint and indefeasible decree, the entire appeal in the court below stood abated by the date the judgment in the appeal was delivered on 12-2-1986. It is further contended that since the lower appellate court passed the decree against all the respondents in ignorance of death of respondent No. 4 (in the Court below) and the plaintiff appellant did not bring the said fact to the notice of the lower appellate Court nor substituted him by his legal heirs, it is to be held that the appeal had abated. It appears from the record that no counter has been filed disputing the fact of the death of Subadara Pradhan, the respondent No. 4 in the lower appellate Court as the date thereof and by order dated 29-7-1986, while considering the said application, this court directed that the question of abatement shall be considered at the time of hearing of the present appeal. In that view of the matter now let me consider as to whether because of the undisputed fact that respondent No. 3 Subadara Pradhan who was respondent No. 4 in T. A. No. 8/84 and defendant No. 4 in the trial Court having died on 3-7-1984 leaving behind his son as the sole legal representative and he not having been substituted in the lower appellate Court, the said appeal is to abate the judgment having been delivered on 12-2-1986 in ignorance thereof. ( 11 ) IT is the contention of the learned counsel for the respondents that no substitution was required as against deceased respondent No. 4 in the Court below since no relief was claimed against the said respondent. ( 11 ) IT is the contention of the learned counsel for the respondents that no substitution was required as against deceased respondent No. 4 in the Court below since no relief was claimed against the said respondent. The learned counsel for the respondents has referred to the decision in the case of Mangal Singh v. Smt. Rattno (dead) by her legal representative, AIR 1967 SC 1786 to contend that since no relief was claimed in the suit nor in the appeal as against respondent No. 4, the appeal cannot abate as against the same. In the said case, the Apex Court on consideration of the pleadings of the parties and the nature of the dispute found that deceased respondent therein was an unnecessary party and consequently failure to implead his legal representative as respondent in appeal after his death does not affect the right of the defendants to claim the relief for which they had gone to the apex court. In the case of Matindu Prakash (deceased) by L. Rs v. Bachan Singh, AIR 1977 SC 2029 , the Apex Court has held that the question whether the appeal abates as a whole so as to entail a dismissal of the entire suit was a matter which could be gone into after a perusal of the nature of the pleading the relief granted by the Court and other material on record. Since in that case the High Court had not gone into the question, the Supreme Court remitted the appeal to the High Court to record a finding and decide whether my virtue of the death of the appellants, the appeal abates as a whole resulting in dismissal of the appeal itself or the appeal had abated qua the deceased appellants before it. ( 12 ) THE positive stand of the appellants that Subadara Pradhan, son of late Kenduria Pradhan, respondent No. 4 in T. A. No. 9/84 (respondent No. 3 in the present appeal and defendant No. 4 in T. S. No. 2/81) died on 3-7-1984 leaving behind his son as the sole legal representative, in Misc. Case No. 246/86 arising out of the present appeal in this Court, has not been brought on record in T. A. No. 8/84 nor the respondents herein have controverted or denied the assertions made with regard to his death and non substitution. Case No. 246/86 arising out of the present appeal in this Court, has not been brought on record in T. A. No. 8/84 nor the respondents herein have controverted or denied the assertions made with regard to his death and non substitution. The judgment has been delivered by the learned District Judge in the Title Appeal on 12-2-1986 in ignorance of such death. The question as to whether the appeal abales as a whole so as to result in dismissal of the entire suit is the matter which can be gone into after consideration of the nature of the pleadings, relief granted by the Court and other materials on record. Since in the lower appellate court this fact was not brought to the notice, it had no occasion to deal with the same and consider as to whether in view of the nature of the pleadings and relief claimed, legal representative of the deceased respondent No. 4 having not been brought on record, the appeal has to abate, has not been considered. In the circumstances, without going into the merit of the present appeal, on this point alone, I would set aside the judgment and decree of the lower appellate court and remit the matter for consideration as to whether non-substitution of the legal heirs of deceased-respondent No. 4 Subedara Pradhan, the appeal would abate as whole so as to result in dismissal of the entire suit, after affording opportunity to the parties to lead fresh evidence if they are so advised. If the learned District Judge (sic) to the finding that the appeal abates as a whole, consequential order shall be passed and in case it is held that the appeal does not abate because of the death of respondent No. 4 he shall proceed to consider the appeal afresh on the existing materials on record expeditiously, preferably within a period of three months from the date of receipt of this order. The second appeal is, thus, allowed to the extent indicated above. There shall, however, be no order as to cost. Let the lower Court records be transmitted forthwith. Order accordingly.