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2007 DIGILAW 873 (ORI)

Jagannath Nayak v. Laxminarayan Thakur

2007-11-19

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is an appeal by the defendant No.4 challenging the judgment and decree passed by the learned Subor¬dinate Judge, Jajpur in Title Appeal No.2 of 1980 modifying the judgment and decree passed by the learned Munsif, Jajpur in T.S. No.51 of 1974. 2. The present respondents as plaintiffs filed a Title Suit for declaration of their right, title and interest in re¬spect of the suit land described in Schedule ‘A’ of the plaint, for recovery of the lands described in plot No.2 of the schedule, for permanently restraining the defendants 1 to 8 from interfer¬ing with their possession and also for declaration that the decree passed in Title Suit No.128 of 1971 of the Court of Mun¬sif, Jajpur is illegal, collusive, inoperative, inexecutable and does not bind the plaintiffs or the suit properties to permanent¬ly restrain defendant No.4 from executing the ex parte decree of T.S. No.128 of 1971. A prayer was also made for demarcation of the eastern boundary of the suit plot and for fixing the demar¬cating pillars with the help of civil Court commissioner. The plaintiff’s case, in brief, was that the suit schedule property was purchased by the plaintiffs and was in their possession, but taking advantage of the fact that the plaintiffs No.2 and 3 are married ladies residing with their husbands, defendant Nos.1 to 5 colluded and got an ex parte decree in T.S. No.128 of 1971 against the defendant Nos.9 and 10 and taking advantage of such decree, the defendants removed the fence, cut down the coconut trees standing on the suit land and encroached a space of 1 cubit x 60 cubits from south-eastern side of the suit plot. They also threatened to execute the decree of Title Suit No.128 of 1971. The plaintiffs, therefore, filed the suit seeking the aforementioned reliefs. None of the defendants except defendant No.4 filed written statement or contested the suit. Defendant No.4 claimed that plot No.113 measuring Ac.0.36 dec. was the ancestral property of defendant Nos.1 to 8 but in the partition dated 29.5.1952, the western side measuring Ac.0.18 fall to the share of defendant No.4 and his brother defendant No.5. But subsequently, defendant No.5 sold his share to him by registered sale deed dated 11.3.1963 as a result of which he (defendant No.4) became the exclusive owner in possession of Ac.0.18 dec. of land. But subsequently, defendant No.5 sold his share to him by registered sale deed dated 11.3.1963 as a result of which he (defendant No.4) became the exclusive owner in possession of Ac.0.18 dec. of land. Defendant No.4 pleaded that neither the plaintiffs nor defendant Nos.9 and 10 have any right or possession over the suit property. He denied that the decree in T.S. No.128 of 1971 was obtained by collusion or fraud and also denied the act of tres¬pass, cutting of trees and removal of fence. Issues were framed and evidence of the contesting parties were taken. During the pendency of the suit,defendant No.6 died and his legal heirs were not substituted and the suit abated against him. Defendant No.8 appeared at later stage and wanted to participate in the hearing. But the plaintiffs abandoned the suit against defendant No.8 and the Court allowed that prayer. At subsequent stage, the plaintiff abandoned the suit against defendants No.1 to 3, 5 and 7 and his prayer in that regard was allowed by the Court. In the end the suit was decreed on contest against defendant No.4 and ex parte against defendant No.10 with cost. Defendant No.4 preferred appeal against the said judgment and decree. Learned 1st appel¬late Court after considering the submissions of the parties and on re-assessment of the evidence reversed the finding of the learned trial Court on issue Nos.6 and 10 while confirming the findings on other issues. In the result, he allowed the appeal in part. The said judgment and decree is under challenge in this appeal. 3. At the time of admission, the following substantial questions of law were formulated for consideration: (i) Whether the suit is maintainable against defendant No.4 alone when plaintiffs had originally filed the suit for eviction of defendant Nos.1 to 8 impleading them as joint trespassers ? (ii) Whether the Courts below committed a serious error of law in rejecting the claim of adverse possession of defendant No.4 on the ground that there was no evidence adduced by him ? (iii) Whether the plaintiffs have locus-standi to present the suit when admittedly the suit property appertains to an interme¬diary interest which had vested in the State under the Orissa Estate Abolition Act, 1951 and the plaintiffs had not filed any claims under Sections 6, 7 and 8(a) of the said Act ? 4. Regarding the substantial question no. (iii) Whether the plaintiffs have locus-standi to present the suit when admittedly the suit property appertains to an interme¬diary interest which had vested in the State under the Orissa Estate Abolition Act, 1951 and the plaintiffs had not filed any claims under Sections 6, 7 and 8(a) of the said Act ? 4. Regarding the substantial question no. (iii), it will suffice to indicate that there was no pleading by any of the parties about the vesting of the intermediary interest in the State or the plaintiffs applying or not applying under Sections 6, 7, 8 of the Orissa Estate Abolition Act. Since it is a mixed question of fact and law,the Courts below rightly refused to entertain this submission as they could not have gone into this aspect without any pleading. 5. So far as question No.(iii) is concerned, this question relates to factual issue. Learned 1st appellate Court dealt with the issue in paragraph 18 of the judgment where the facts and evidence including the evidence of the Survey Knowing Commission¬er have been discussed in detail and a conclusion has been noted that the suit land does not appertain to plot No.113 over which the defendant No.4 claimed adverse possession, but it only apper¬tains to plot No.115. This conclusion is based on evidence and sound reasonings and the approach is in no way perverse. There¬fore, there is hardly any scope for this Court of Second Appeal to interfere in such factual finding. 6. The question No.(i) relates to the correctness of the findings of the learned 1st appellate Court on the question of abatement of the suit as a whole. It is contended by the learned counsel for the appellant that the defendants 1, 2, 3, 5, 7 and 8 against whom the plaintiffs withdrew the suit and the defendant No.6 who died were all necessary parties and therefore, the suit was bad for non-joinder of necessary parties. It is contended that the plaintiffs alleged collusion amongst the defendants and joint trespass by them over a portion of the suit plot and also prayed for declaration and injunction against all of them and for that reason on abatement of the suit against the defendant No.6, the suit has to abate as a whole. It is contended that the plaintiffs alleged collusion amongst the defendants and joint trespass by them over a portion of the suit plot and also prayed for declaration and injunction against all of them and for that reason on abatement of the suit against the defendant No.6, the suit has to abate as a whole. In support of this contention, learned counsel cites the cases of Damodar Patra and others v. Kanchan Sahuani and others, AIR 1963 Orissa, 140, Lakshmi Charan Panda and another v. Satyabadi behera and others, AIR 1964 Oris¬sa, 39, Dhruba Bhoi and others v. Brundabati Bhoiani and others, 38(1972) C.L.T. 400. 7. Learned counsel for the respondent submits, per contra, that none of the defendants except defendant No.4 contested the suit or filed written statement and therefore, abatement of the suit against defendant No.6 for non-substitution of his legal heirs would not entail abatement of the suit as a whole. He also states that because the plaintiffs had already abandoned their suit against defendants Nos.1 and 3, 5, 7, 8 and defendant Nos.9 and 10 were proforma defendants and no relief had been claimed against them, they were not necessary parties and the suit never suffered from non-joinder of these parties. In support of this contention, learned counsel for the respondent relies on the case of Bira Sethi and others v. Purusottam Mishra and another, AIR 1963 Orissa, 118. 8. In the cases cited by the appellants, it was essential¬ly held that non-substitution of the joint tort-feasor who upon death left behind legal representatives would lead to inevitable dismissal of the entire litigation, as it would cease to be competent. In the case of Damodar Patra and others (supra), which involved an action of ejectment of a person in possession, de¬fendant Nos.1 to 3 raised contest with regard to some of the items in which defendant No.4 did not claim any interest. Defend¬ant No.4 died during pendency of the suit and his legal represen¬tatives were not brought on record. The Court below held that the suit abated against defendant No.4 only and the plaintiffs’ suit would decreed with regard to the items in which defendant No.4 had no interest and there was no question of incompetency of the suit relating to these items. This finding was challenged in Second Appeal. The Court below held that the suit abated against defendant No.4 only and the plaintiffs’ suit would decreed with regard to the items in which defendant No.4 had no interest and there was no question of incompetency of the suit relating to these items. This finding was challenged in Second Appeal. This Court held that although there was severance of status and defendant No.4 did not claim right over some properties yet the decree cannot be affected in the absence of the legal heirs of defendant No.4 and for that reason, the suit has to abate as a whole. In the case of Lakshmi Charan Panda and another (supra), all the defendants were characterized as joint tort-feasors and the said suit was dismissed and the decision was maintained in the first appeal. In the Second Appeal one of the defendants died and his legal representatives were not substitut¬ed. In that situation, it was held that abatement of appeal only against the deceased-defendant and continuance of appeal against the other defendants would lead to inconsistent decrees and therefore, the appeal would abate as a whole. In the case of Dhruba Bhoi (supra), defendant No.6, who was a proforma defendant died and for non-substitution of his legal heirs the suit abated. The lower appellate Court held that the entire appeal would abate. The said order was challenged in Second Appeal and this Court held that the defendants were joint tort-feasors and there¬fore, abatement of the suit against one of the defendants would entail in abatement of the entire suit/ appeal. In the case of Bira Sethi (supra), which was relied by the respondents, also similar view was taken and it was said that if the suit is against joint trespassers, death of one of the trespassers during the pendency of the appeal, substitution of his legal representa¬tives would lead to abatement of the appeal in its entirety. 9. Law is, therefore, settled that if the suit is brought against a joint trespasser or joint tort-feasors, then abatement of the suit against one of the defendants for non-substitution of his legal heirs would entail in abatement of the suit as a whole. Now it is to be seen if this legal ratio is applicable to the present case. Initially the suit was brought against 10 defend¬ants including the appellant as defendant No.4. Now it is to be seen if this legal ratio is applicable to the present case. Initially the suit was brought against 10 defend¬ants including the appellant as defendant No.4. Only defendant No.4 contested the suit and the rest 9 defendants did not contest and were set ex parte. During pendency of the suit, defendant No.6 died and his legal heirs were not brought on record, as a result of which the suit abated against him. In the written statement, defendant No.4 specifically averred that the suit land is his exclusive property and he is alone in possession of the same and that the other defendants have no right, title or pos¬session over it. After this written statement, the plaintiffs abandoned his suit against other defendants and continued his legal battle with defendant No.4 alone. 10. Learned counsel for the appellant argues that when in the plaint there was allegation of joint trespass by the defend¬ants and relief of injunction had been sought against all of them and when the plaint was not amended, it becomes a suit against joint trespassers and therefore, all of them becomes necessary parties and the suit would be bad for non-joinder of necessary parties and would also abate as a whole in view of the abatement against defendant No.6. It is pertinent to note that the plain¬tiffs prayed the Court to allow him to abandon the claim against the non-contesting defendants and the Courts allowed that prayer with observation that those defendants were not necessary par¬ties. When the plaintiff abandoned his suit against the non-contesting defendants with the permission of the Court, it would tantamount to amendment of the plaint as well as the prayer. Since after abandonment of the claim against other defendants, the allegation and relief was only against defendant No.4, and there was no suit against the other defendants, the suit or appeal was not invalid due to non-joinder of other defendants. Similarly the plea of joint trespass and claim of joint relief against defendants having been abandoned and confined only to defendant No.4, abatement of the suit against defendant No.6 would not entail abatement of the entire suit for the simple reason that the decree passed in the suit would be workable against defendant No.4 against whom the suit now exists. 11. 11. For the aforesaid reasons, the substantial questions of law are all answered against the appellant and the appeal is dismissed on contest. The appeal being dismissed on technical ground, parties would bear their own cost. Appeal dismissed.