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2006 DIGILAW 797 (ORI)

Balaram Bhoi v. Babajee Bhoi

2006-11-20

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : The judgment dated 29th November, 2003 passed by the 1st Ad hoc Addl.District Judge, Puri in Title Appeal No.130/83 of 2002/2000 is assailed in this appeal under Order 43, Rule 1(4) of the Code of Civil Procedure by the respondent in the said appeal who was the defendant in T.S. No.188 of 1992 of the Court of the Civil Judge (JD), Nimapara. 2. The aforesaid Title Suit was one for declaration of title and confirmation of possession of the plaintiffs who are the respondents in this appeal over the disputed lands and perma¬nent injunction of the defendant who is the present appellant in respect of the said lands, and in the alternative for recovery of possession of the plaintiffs. According to the plaint averments, the suit land bearing Consolidation Plot Nos.1169 having Ac.0.05 dec. of land and No.1169/1965 having Ac.0.05dec. of land appertaining to Khata No.232 of Mouza-Ansalo under Nimapara Police-Station in the district of Puri are homestead lands. The aforesaid plots corre¬spond to 1928 Settlement Plot No.852 with an area of Ac.0.10 dec. of land under Khata No.62. According to the plaintiffs, Gopi Bhoi, Kinei Bhoi and Bira Bhoi, all sons of one Ananda Bhoi, were jointly residing in the suit lands as Sikimi tenants and their names were recorded as Sikimi tenants in the remarks column of the ROR. Out of the said three brothers, Kinei and Bira died unmarried while living joint with Gopi. Thereafter Gopi died leaving behind him his four sons, namely, Laxman, Jairam, Sridhar and Giridhari. As it was impossible for all the aforesaid four sons of Gopi to reside on the said Ac.0.10 dec. of suit land, Laxman with his sons including the defendant shifted to another land bearing Hal Plot No.1099 which had been acquired by all the brothers (sons of Gopi) and Laxman and his sons relinquished their claim over the suit lands in favour of Jairam (Laxman’s brother). Thereafter Sridhar died and as he was issueless his interest in the suit lands devolved on Jairam and Giridhari (other two sons of Gopi). It was averred that Giridhari and his son Khetramohan having relinquished their claim in the suit lands in favour of Jairam fifty years back, resided on plot No.1098 which had also been acquired by all the aforesaid four sons of Gopi. It was averred that Giridhari and his son Khetramohan having relinquished their claim in the suit lands in favour of Jairam fifty years back, resided on plot No.1098 which had also been acquired by all the aforesaid four sons of Gopi. Thus Laxman and his sons as well as Giridhari and his son having lost their right, title and interest in respect of the suit lands Jairam became the exclusive owner in possession of the suit lands and Jairam also obtained a sale deed from the legal heirs of one Pankaj Sahu whose name had been wrongly mentioned in the ROR in respect of the suit lands. While matter stood thus, a proceeding was initiated under Section 145 CrPC in respect of the suit lands which was decided in favour of the defendant. It was also averred in the plaint that earlier Title Suit No.30/2203 of 1989 had been filed against the defendant in the Court of the Munsif, Puri in respect of the suit lands by the power-of-attorney holder of Jairam, namely, Hata Bhoi, who was the brother-in-law of Jairam. The said suit was however dismissed for default. It was alleged in the plant that the defendant in collusion with said Hata Bhoi got his (defen¬dant) name recorded in respect of Ac.0.05 dec. of suit land. It is submitted by learned counsel that during consolidation operation the suit lands were exclusively recorded in the name of Jairam. Jairam having suffered from leprosy, in order to meet his medical expenses sold the suit lands on 27.6.1990 to the plaintiff by virtue of a registered sale deed and delivered possession thereof to the plaintiff. After purchasing the suit lands, the plaintiff stayed there construction a thatched house thereon. Taking advantage of the fact that Jairam was suffering from leprosy, the defendant could manage to illegally record his name in the remarks column in ROR in respect of suit plot No.1169/1965 appertaining to Khata No.232 as Sikimi tenant and then on 4.5.1992 being armed with deadly weapons and accompanied by his henchmen the defendant arrived at the suit lands, tried to demolish the thatched house raised by the plaintiff on the said lands and disturb his possession for which the plaintiff was constrained to file aforesaid Title Suit No.188 of 1992. 3. The defendant in his written statement disputed the plaint averments. 3. The defendant in his written statement disputed the plaint averments. He specifically pleaded that his possession had been declared in a proceeding under Section 145 CrPC and that the purchaser of the suit lands from Jairam never took possession of the said lands. He also pleaded that the averment of the plain¬tiff as to Laxman and Giridhari having relinquished their inter¬est in the suit lands in favour of Jairam was also false and baseless and prayed that the suit being not maintainable may be dismissed. 4. On the basis of the pleadings of the parties the trial Court framed the following issues for adjudication of the dispute :- “(i) Is the suit maintainable ? (ii) Is there any cause of action for the suit ? (iii) Is the suit for permanent injunction without declara¬tion of title and recovery of possession maintainable ? (iv) Is the suit liable to be abated for pendency of consol¬idation revision cases for the suit land. ? (v) Is the suit maintainable under Order 9, Rule 9 CPC ? (vi) Is the suit hit by Order 2, Rule 2 CPC in absence of all the reliefs like recovery of possession, etc. not sought in the suit. (vii) Has the plaintiff title and possession over the suit land ? (viii) Are the recordings in the name of the vendor of the plaintiffs by consolidation authority legal and/or without juris¬diction ? (ix) Had Jairam Bhoi lost his right to the suit land by ouster ? (x) To what relief, if any, the plaintiff is entitled ?” 5. In order to substantiate their respective cases, the plaintiff got examined three witnesses and produced ten documents while the defendant got two witnesses examined and produced nine documents. The trial Court after discussing the evidence, both oral and documentary, in extenso dismissed the suit. 6. Being aggrieved by the judgment of the trial Court the plaintiff preferred Title Appeal which was heard and disposed of by the 1st Ad hoc Addl.District Judge, Puri. The said appellate Court after discussing the evidence abruptly came to the conclu¬sion that the original Sikimi tenant being Jairam Bhoi, he should have been impleaded as a party to the suit and in his absence the real issue in controversy could not be decided. The said appellate Court after discussing the evidence abruptly came to the conclu¬sion that the original Sikimi tenant being Jairam Bhoi, he should have been impleaded as a party to the suit and in his absence the real issue in controversy could not be decided. It held that the trial Court ought to have framed/decided the following issues :- “(1) Whether the sale deed dt.3.4.1953 executed by Sadananda Sahu, Gadadhar Sahu, Surendranath Sahu and Narendranath Sahu in favour of Jairam Bhoi is a valid and genuine sale deed or it is a collusive sale deed and had never been acted upon ? (2) Whether the suit is bad for non-joinder of Jairam Bhoi, his wife and son as parties to the suit ? (3) Whether by the year 1946, father of defendant Balaram Bhoi, vendor of the plaintiff, namely Jairam Bhoi and other brothers of said Jairam Bhoi have acquired the right of occupancy in respect of the suit land ? With the aforesaid observation the appellate Court remanded the suit for fresh trial and decision on the issues as quoted above. 7. The judgment of the appellate Court is assailed mainly on the ground that all the materials being available on record and evidence having been adduced in respect of the aforesaid issues, the appellate Court acted illegally in remanding the suit to the trial Court for fresh disposal. The learned counsel for the plaintiff-respondents at the other hand submitted that the appellate Court has rightly remanded the suit to the trial Court and the impugned judgment does not suffer from any infirmity or illegality calling for interference of this Court. 8. On the basis of the pleadings of the parties, the trial Court had framed issue No.(ix) to the effect “Had Jairam Bhoi lost his right to the suit lands by ouster ?” and another issue, being issue No.(viii) “Are the recordings in the name of the vendor of the plaintiffs by consolidation authority legal and/or without jurisdiction ?” 9. It is well settled that after promulgation of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act disputes with regard to right, title and interest of the land-holders were required to be adjudicated under the provi¬sions of the said Act. After publication of Notification in that regard the village in which the disputed lands situate were brought within the purview of the said Act. After publication of Notification in that regard the village in which the disputed lands situate were brought within the purview of the said Act. As no objections were raised in respect of the suit lands, ROR was published by the Consolidation authorities. An ROR published by the Consolidation authorities cannot be varied or set aside by the civil Court and as has been held by this Court the parties are estopped from raising any submission before the civil Court which could have been done before the Consolidation authorities with regard to any right, title and interest. In the present case, vide issue No.(viii) the trial Court posed the question whether the record¬ing in the name of the vendor of the plaintiffs by consolidation authorities was legal and/or without jurisdiction. In view of such an issue having been decided by the trial Court remanding the suit to the trial Court for fresh trial by the appellate Court was not justified. That apart, where evidence on record was sufficient to enable the appellate Court to pronounce its judg¬ment basing on that, and if necessary even by re-settling some new issue, as would be evident from Order 41, Rule 24 CPC, a case should not be remanded for de novo trial. 10. A Court should always try to dispose of a case on the basis of the evidence available on record and the provisions of 0.41, Rule 23 should be applied only in exceptional circumstanc¬es. Law mandates that a litigation is to be concluded as expe¬ditiously as possible. Thus the appellate Court should make all endeavour to dispose of the appeal on the basis of the evidence adduced. 11. The direction of the appellate Court to implead a person as a party to the suit while the contesting parties with their full knowledge did not implead him could not be a ground to remand the suit to the trial Court. If a suit suffers from non-joinder of necessary parties, the said lacuna could not be filled up by the appellate Court by remanding the suit to the trial Court. A perusal of the materials on record including the evi¬dence reveals that the parties led their evidence as they thought best. In such circumstances the appellate Court should not have remanded the suit to the trial Court instead of deciding the appeal itself on the materials available. A perusal of the materials on record including the evi¬dence reveals that the parties led their evidence as they thought best. In such circumstances the appellate Court should not have remanded the suit to the trial Court instead of deciding the appeal itself on the materials available. (see Harmohan Misra and others v. Anapurna Dibuya and others, 1987(II) OLR 157) 12. After perusing the pleadings, the evidence and other materials on record this Court feels that remanding the suit to the trial Court with direction for a de novo trial was not justi¬fied. This Court therefore allows the FAO, sets aside the im¬pugned judgment of the appellate Court and remand the appeal to the said Court for fresh disposal strictly in consonance with law on the basis of the materials already on record. Parties to bear their respective costs. FAO allowed.