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2016 DIGILAW 1042 (ORI)

Tikan @ Tikam Chandra Singh v. Kartika Kheti

2016-11-04

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. The plaintiff no. 2 is the appellant against a confirming judgment. 2. The case of the plaintiffs is that the suit land was the ancestral property recorded in the name of their father. Their father permitted one Tanu Bewa to remain in possession over the suit land. She constructed a house over the suit land and gave a written undertaking that neither she nor her legal heir would claim to the property after her death. After the death of Tanu Bewa, the defendant was in possession of the suit land. A meeting was held in the Panchayat Office of Kaintragarh. In the Panchayat faisalanama dated 9.10.1992, the defendant agreed to vacate the suit land, but did not comply with the same. Therefore, the plaintiffs filed the suit for declaration of right, title and interest and recovery of possession over the suit land. 3. Pursuant to issuance of summons, defendant entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendant is that the suit land was “Boxix zagir land”. The S.D.O., Athmallik in pursuance of notification dated 4.11.1969 settled the land in favour of Tanu Bewa vide Misc. Case No.16/70 dated 7.5.1972. After settlement of the land in her favour, she was in possession of the same. The plaintiffs instituted T.S No.11/76 in the court of the learned Addl. Munsif, Athmallik for declaration of right, title and interest and recovery of possession of the suit land against Tanu Bewa, S.D.O., Athmallik and others. 4. On the inter se pleadings of the parties, learned trial court framed six issues out of which, issue nos.4 and 6 are pivotal, which are quoted hereunder; “(iv) Has the defendant right, title and possession over the suit land ? (vi) Have the plaintiffs got any right, title and interest over the suit land ?” 5. To prove the case, the plaintiffs had examined four witnesses and on their behalf three documents had been exhibited. The defendant had examined two witnesses and on his behalf two documents had been exhibited. 6. On an anatomy of pleadings and evidence, both oral and documentary, learned trial court came to hold that the suit land is “Boxix zagir land”. The S.D.O., Athmallik has settled the land in favour of defendant no.1. It further held that the Chuktinama is not a registered document. 6. On an anatomy of pleadings and evidence, both oral and documentary, learned trial court came to hold that the suit land is “Boxix zagir land”. The S.D.O., Athmallik has settled the land in favour of defendant no.1. It further held that the Chuktinama is not a registered document. Much prior to same, the land was settled in favour of Tanu Bewa. She became the absolute owner of land after settlement. The defendant has right, title and interest over the suit land. Held so, learned trial court dismissed the suit. The plaintiffs unsuccessfully challenged the judgment and decree in Title Appeal No.17 of 2000 before the learned Civil Judge (Senior Division), Athmallik, which was eventually dismissed. 7. Mr. Samantaray, learned counsel for the appellant, submits that the suit land is an ancestral property of the plaintiffs. The same was recorded in the name of their father. They were paying rent regularly. The father of the plaintiffs permitted one Tanu Bewa to possess the land. Tanu Bewa constructed a house over the suit land and gave an undertaking on 15.5.1966 that neither she nor her legal heirs would claim the property after her death. The said agreement was rectified on 7.3.1992 vide Ext.2. After death of Tanu Bewa, the defendant possessed the land illegally. A meeting was held in the Panchayat Office. In the Panchayat faisalanama dated 9.10.1992, the defendant agreed to vacate the land but did not vacate the same. He further submits that the defendant is no way related to Tanu Bewa and remained unauthorised possession over the suit land. Both the courts below committed an illegality in not discussing the evidence in its proper perspective. 8. The submission of Mr. Samantaray, learned counsel for the appellant, is difficult to fathom. The suit land was “Boxix zagir land”. The S.D.O., Athmallik in pursuance of notification dated 4.11.1969 settled the land in favour of Tanu Bewa vide Misc. Case No.16/70 on 7.5.1972. Tanu Bewa was in possession of the suit land. While the matter stood thus, the plaintiffs filed T.S No.11/76 against Tanu Bewa, S.D.O., Athmallik and others in the court of learned Addl. Munsif, Athmallik for declaration of right, title and interest over the suit land and recovery of possession. The suit was dismissed. Assailing the judgment and decree of the learned trial court, they filed Title Appeal No.1 of 1979, which was dismissed. Munsif, Athmallik for declaration of right, title and interest over the suit land and recovery of possession. The suit was dismissed. Assailing the judgment and decree of the learned trial court, they filed Title Appeal No.1 of 1979, which was dismissed. The said judgment has attained finality. The certified copies of the judgment in T.S. No.11 of 1976 as well as T.A No.1 of 1979 have been marked as Exts.1 and 2. Learned lower appellate court came to hold that by order dated 7.5.1972, the S.D.O., Athmallik has settled the land in favour of Tanu Bewa in Misc. Case No.16 of 1970. The plaintiffs challenged the said order in T.S. No.11 of 1976 before the learned Addl. Munsif, Athmallik. The suit was dismissed. They unsuccessfully challenged the same in Title Appeal No.1 of 1979, which was dismissed. Learned lower appellate court confirmed the findings of the learned trial court holding that on the strength of the order passed by S.D.O., Athmallik in Misc. Case No.16/70, Tanu Bewa has acquired valid title over the suit land. The said judgment has attained finality. Learned lower appellate court further held that the present suit is barred by res judicata. Ext.2 has been styled as Chuktinama. The contents of Ext.2 show that Damodar Singh, father of the plaintiffs, permitted Tanu Bewa to occupy the suit land with a condition to take back the same after death. Though a contention was advanced before the courts below that it was a Will, but the same was negatived on the ground that Ext.2 has not satisfied the requirement of the Will. In fact the plaintiffs examined the witnesses to prove that Ext.2 is a Will. The learned lower appellate court came to hold that there is suspicious circumstance about the genuineness of Ext.2. With regard to Ext.3 i.e. Faisalanama, learned lower appellate court did not give any credence to the same since it was an unregistered document. The plea of the plaintiffs that the defendant is an illegitimate grand son of Tanu Bewa was negatived by the courts below. The learned lower appellate court came to hold that the same is beyond pleadings. Rather from the judgment of the learned trial court it is evident that the mother of the defendant is the daughter of Tanu. 9. The next submission of Mr. Samantaray, learned counsel for the appellant that in Misc. The learned lower appellate court came to hold that the same is beyond pleadings. Rather from the judgment of the learned trial court it is evident that the mother of the defendant is the daughter of Tanu. 9. The next submission of Mr. Samantaray, learned counsel for the appellant that in Misc. Case No.16/70 neither the plaintiffs nor their father was a party and, as such, they are not binding by any order of settlement. 10. In the State of Kerala Vrs. M.K. Kunhikannan Nambiar, AIR 1996 SC 906 , the apex Court held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not daterminative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court went in depth into the jurisprudential concept of ‘void’ and ‘voidable’ and held thus : “7. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus:- "If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action, De Smith. Woolf and Jowell, 1995 edition. at pages 259-260 the law is stated, thus:- "The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action, De Smith. Woolf and Jowell, 1995 edition. at pages 259-260 the law is stated, thus:- "The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent Jurisdiction." Similarly, Wade and Forsyth in Administrative Law, Seventh edition-1994, have stated the law thus at pages 341-342:- "…….every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Racliffe said: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects." 11. In view of the authoritative pronouncement of the apex Court in M.K. Kunhikannan Nambiar (supra), the submission of Mr. Samantaray, learned counsel for the appellant, has no leg to stand. 12. The present suit is hit by the principle of res judicata inasmuch as the matter has attained finality in Title Appeal No.1 of 1979. 13. In view of the foregoing discussions, the appeal does not involve any substantial question of law. The same is accordingly dismissed.