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2014 DIGILAW 723 (ORI)

Debadutta Mishra v. Chakradhar Mishra

2014-11-05

BISWANATH RATH

body2014
JUDGMENT BISWANATH RATH, J. : Petitioners in W.P.(C) No. 15455 of 2009 being sons of one Jugal Kishore Mishra by filing the petition assailed the order and decree in Annexure-1 series passed by the Judge, Permanent and Continuous Lok Adalat, Keonjhar in PLA Case No. 50 of 2008 whereas the second writ (W.P.(C) No. 16858 of 2009) is filed by one Jugal Kishore Mishra (the father of petitioners in the 1st case and nephew of opposite party No. 2 in the 2nd case) assailing the very same award involved in PLA Case No. 50 of 2008. 2.The case of the petitioners in the 1st case is that opposite party No. 1, the uncle of their father, filed PLA No. 50 of 2008 before the Judge, Permanent and Continuous Lok Adalat, Keonjhar seeking declaration that he is the absolute and sole owner as well as the title holder of the schedule properties against the father of the present petitioners appearing as opposite party No. 2 in the present writ. The claim made in PLA No. 50 of 2008 is solely based on an earlier decree passed in Title Suit No. 16 of 1978, which has been ended on the basis of a compromise arrived between the parties therein. The petitioners further submitted that their grand father, namely, Nirakar Mishra and applicant in the PLA Chakradhar Mishra are sons of one Bhagabat Mishra, who died in the year 1945 leaving behind his widow, namely, Mania Mishra and two sons, namely Nirakar Mishra, the grand father of the petitioners and Chakradhra Mishra present opposite party No. 1. Wife of Nirakar Mishra predeceased him and father of the petitioners became the sole heir of said Nirakar Mishra. The claim of the present opposite party No. 1 in the PLA application solely based on a compromise entered into between Chakradhar Mishra and Jugal Kishore Mishra both the opposite parties in the present writ petition. It is apt to mention here that the claim in the PLA application was confined to the schedule of properties vide Lot No. 1, Lot No. 2 and Lot No. 3. Petitioners further alleged that the property being ancestral property and even though they are majors and they have right over the property, the PLA application was cladestinely levied without making the present petitioners as party and a clandestine decree has been obtained from the Permanent and Continuous Lok Adalat, Keonjhar. Petitioners further alleged that the property being ancestral property and even though they are majors and they have right over the property, the PLA application was cladestinely levied without making the present petitioners as party and a clandestine decree has been obtained from the Permanent and Continuous Lok Adalat, Keonjhar. The petitioners further alleged that the compromise petition vide Annexure-2 is void and invalid on the ground that no compromise has been arrived with unconditional acceptance of the right, title and interest of opposite party No. 1 over the disputed property at the instance of Jugal Kishore Mishra, the father of the petitioners, who was duty bound to protect the property of the present petitioners. In assailing the impugned order, the petitioners have alleged that the compromise has been arrived by applying fraud, misrepresentation and by undue influence for which such a decree is not maintainable in the eye of law. Learned counsel for the petitioner also assailed the impugned order on the ground that there has been non-compliance of several provisions of the Legal Services Authorities Act, 1987. 3.Per contra, the opposite party No. 1 on his appearance filed a counter affidavit inter alia contending therein that PLA No. 50 of 2008 was considered in active participation of the father of the present petitioners. There was previous decree involving the disputed property and to avoid future complication, there arose occasion for filing a compromise application. The compromise application was filed on joint affidavit, the order and decree in the PLA No. 50 of 2008 are passed on the consent of the opposite parties and the father of the petitioners and as such, the present petitioners are not prejudiced in any manner. The opposite party No. 1 i.e. Chakradhar Mishra provided a genealogy to substantiate his case which runs as follows : Late Abhiram Mishra Late Bhagabat = Late Manika @ Mania Late NirakarChakradhar JugalDillipPradip Basantilata Sukantilata Santilata DebaduttaBiswajit The opposite party No. 1 further submitted that prior to the PLA case, a suit as filed by the opposite party No. 1 along with Mania, his mother, registered as Title Suit No. 16 of 1978 in the Court of Sub-Judge, Keonjhar against late Nirakar Mishra, father of opposite party No. 2 and grand father of the present petitioners. The suit ended in compromise on 10.7.1978. Record of rights was prepared jointly. The suit ended in compromise on 10.7.1978. Record of rights was prepared jointly. The decree was not engrossed on stamp paper but a complete partition was effected following the terms of the decree in the above suit by metes and bounds. By virtue of the aforesaid decree of partition by metes and bound, Nirakar, the grand father of the petitioners possessed his land separately. On his filing a Mutation Case for recording his name in respect of the land allotted to him, following the terms of the decree, his name was separately recorded assigning the allotted land in his favour. Chakradhar Mishra, the present opposite party No. 1, however, could not record his name exclusively although he was in separate possession. The properties involved in PLA No. 50 of 2008 are his exclusive properties. PLA Case No. 50 of 2008 was filed only to avoid future complicacy. On these premises, the opposite party No. 1 claimed that there is no illegality in the impugned order. To substantiate his case, opposite party No. 1 further pleaded that the parties have entered in several civil proceedings vide Title Suit Nos. 20 of 1982 and 15 of 1988 and 118 of 2009 prior to settlement before the Permanent and Continuous Lok Adalat and during pendency of the writ petition the petitioners along with opposite party No. 1 have already filed Civil Suit No. 72 of 2012 making a fresh prayer for partition of the properties which is pending adjudication. The opposite party No. 1 also claimed dismissal of the present writ petition in view of initiation of Civil Suit No. 72 of 2012. Opposite party No. 1 in filing the counter affidavit has filed the copy of the plaint in Title Suit No. 16 of 1978 as appearing at Annexure-A to his counter affidavit. He has also filed a copy of the plaint vide Civil Suit No. 72 of 2012 at Annexure-B to his counter affidavit. 4.Though the opposite party No. 2 appeared in the 1st writ but instead of filing any counter he rather filed the 2nd writ petition, challenging the very same order and decree passed in PLA No. 50 of 2008 on the ground that the order and decree in the PLA case has been obtained applying fraud. He had no consent for such decree. He had no consent for such decree. He had no consent even for the compromise which has been filed by the opposite party false impression. The compromise decree having been fraudulently obtained, the petitioner in the subsequent case claimed that the order and decree passed in PLA 50 of 2008 is bad in law and to remit the matter for fresh hearing of PLA No. 50 of 2008 on its own merit affording an opportunity to the petitioner to contest in the matter. The opposite party No. 1 on its appearance herein also filed a counter affidavit taking very same objection as he has raised in the writ petition. Perusal of PLA application vide PLA No. 50 of 2008 it clearly discloses that the matter was contested in between the opposite parties in the writ petition and the petitioner and the opposite parties in the second writ petition without involving the petitioner in the 1st writ petition. The genealogy, as submitted by the opposite party No. 1 in the first writ petition and the opposite party in the second writ petition clearly establishes that the petitioners and the opposite party No. 2 in the first case as well as petitioner in the second case belong to branch of Nirakar whereas Chakradhar belongs to the other branch. Nirakar and Chakradhar are two sons of late Bhagabat. Debadutta and Biswajit, the petitioners in the first writ petition, being the grand sons of late Nirakar have undoubtedly a right over the ancestral property. Further, the facts as pleaded by the petitioners in the writ petition that the decree before the Permanent and Continuous Lok Adalat has been obtained applying fraud and misrepresentation of facts and, more particularly, in absence of making these petitioners as parties to the PLA No. 50 of 2008. Similarly, the petitioner in the second case has also emphatically submitted that the decree in PLA 50 of 2008 has no consent of him and the same has been obtained under misrepresentation of facts by the opposite party No. 1 in the first case and opposite party in the second case. Similarly, the petitioner in the second case has also emphatically submitted that the decree in PLA 50 of 2008 has no consent of him and the same has been obtained under misrepresentation of facts by the opposite party No. 1 in the first case and opposite party in the second case. Opposite party No. 1 in the first case, who is also an opposite party No. 2 in the second case in filing his counter in both the cases has admitted that even though there was a compromise decree in respect of the disputed property vide Title Suit No. 16 of 1978 and even though parties to the said compromise are owning their respective property as on date, the properties fell to the share of Chakradhar, i.e., opposite party No. 1 in the first case and the sole opposite party in the second case have not been recorded separately as on date. On his own admission, the properties still standing jointly and the compromise decree arrived in Title Suit No. 16 of 1978 has not been put to final decree as on date. It is on these premises, the rights of the parties over the property appears to be still in dispute. As is appearing from submission of both the parties, there is another suit instituted at the instance of the petitioners in the first case, i.e., Civil Suit No. 72 of 2012 not only challenging the compromise decree passed in the earlier suit but also claiming a fresh partition of the suit property involving the property involved in the present two litigations. Further it is also available from materials on record that the opposite party No. 1 in the 1st case as well as the second opposite party in the 2nd case has also filed an intervention application seeking his addition as a party in the C.S.No. 72 of 2012, which is pending consideration. It is on this premises it was incumbent on the part of the applicant in the Permanent and Continuous Lok Adalat application to make petitioners as the opposite parties and the matter should have been decided in participation of all the contestants. It is on this premises it was incumbent on the part of the applicant in the Permanent and Continuous Lok Adalat application to make petitioners as the opposite parties and the matter should have been decided in participation of all the contestants. Further, since there is allegation for obtaining the impugned decree applying fraud and obtaining a decree on misrepresentation of fact as appearing in both the writ petitions, the order and decree passed by the Lok Adalat in the Permanent and Continuous Lok Adalat Application No. 50 of 2008 cannot be sustained. Thus while remitting the matter back to the Permanent and Continuous Lok Adalat, I direct the Permanent and Continuous Lok Adalat to re-hear the PLA No. 50 of 2008 allowing the Petitioner Nos. 1 and 2 in the first writ petition as opposite parties to the litigation and decide the matter afresh by affording opportunity of hearing to all the parties. Since all the parties are contesting the matter in this Court, to avoid unnecessary delay, I direct the petitioners and opposite parties involved in both the writ petition to appear before the Permanent and Continuous Lok Adalat, Keonjhar on 10.11.2014. On production of certified copy of this order, the Permanent and Continuous Lok Adalat shall proceed in the matter as directed hereinabove. Writ petitions succeed to the above extent. However, there shall be no cost. Petition succeeds.