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2016 DIGILAW 114 (ORI)

Kalabati Sahu v. Kamala Dei @ Kamala Sahu

2016-02-09

D.DASH

body2016
JUDGMENT The appeal has been filed calling in question the judgment and decree passed by the learned District Judge, Bolangir in Title Appeal No. 27 of 1994 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Bolangir in Title Suit NO. 09 of 1965. The respondents as the plaintiffs had filed the suit against the appellant defendants for declaration of their right, title and interest over the suit land, delivery of possession and further claiming the mesne profit. The suit having been decreed, the unsuccessful defendants had carried an appeal and that having yielded no fruitful result, they have filed this appeal under Section 100 of the Code of Civil Procedure. 2.For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the Court below. 3.The plaintiffs’ case is that they had filed the suit i.e. Title Suit No. 25 of 1945 in the Court of Munsif, Bolangir for declaration of their title and recovery of possession over the land measuring Ac. 12.73 decimals which included the land involved in the present suit with further prayer for cancellation of the sale deed executed by the defendant no. 3 in favour of defendant nos. 1 and 2. The said suit being decreed in terms of the compromise, declaring the title of the plaintiffs, the defendant nos. 1 and 2 therein challenged the said compromise decree by carrying an appeal i.e. Civil Appeal No. 47/19 of 1948 which finally stood dismissed by the learned Sub Judge, Bolangir. Challenging the said dismissal, they again carried the second appeal to this Court. During pendency of said second appeal, again compromise petition was filed, and the said defendant nos. 1 and 2 were given the land measuring Ac. 4.14 decimals out of the said suit land and the plaintiffs thus got the land of Ac. 8.59 decimals. The appeal being disposed of in term of the compromise, the plaintiffs in order to take possession filed the Execution Proceeding No. 304 of 1952 in the trial Court and accordingly they took delivery of possession on 30.03.1953. It is pertinent to mention here that in the said execution proceeding, the defendant no. 8.59 decimals. The appeal being disposed of in term of the compromise, the plaintiffs in order to take possession filed the Execution Proceeding No. 304 of 1952 in the trial Court and accordingly they took delivery of possession on 30.03.1953. It is pertinent to mention here that in the said execution proceeding, the defendant no. 2 of the original suit i.e. Madhu raised an objection to the executabillity of the said decree by filing the regular petition under Section 47 of the Code of Civil Procedure, 1908 as it stood then. The objection was overruled and therefore, further appeal as it was provided under that old code was carried against the said order. The appeal also stood dismissed. The ground taken in the said objection in specific was that the said compromise had been passed behind the back of the objector and that fraud had been played in the matter of obtaining the compromise decree. Both the execution Court as well as the appellate Court then held that there was no fraud in finally passing of the compromise decree in the second appeal in the High Court and also found that the said objector is very much bound by it. Despite all these, further dispute cropped up. In the year 1958, the defendants initiated a proceeding under Section 145 Cr.P.C., where possession of the plaintiffs was maintained. A revision being carried to the High Court as per the provision of the Code of Criminal Procedure then in force, the matter stood remanded for passing necessary order afresh with reasons. Upon remand, possession of the defendants over the suit land was declared. Further revision being carried, the same, stood dismissed by the learned Sessions Judge and that remained undisturbed though challenged in the High Court. The plaintiffs’ further case is that in view of the compromise decree finally passed in the second appeal, the defendants having lost all their right, title and interest over the suit land, yet are unnecessarily creating disturbances in possession of the plaintiffs, despite the possession being duly delivered to them in the execution proceeding. In view of such disturbance being made in their possession, the plaintiffs filed the above noted suit. The contesting defendants while traversing the plaint averments reiterate the fact that the defendant no. In view of such disturbance being made in their possession, the plaintiffs filed the above noted suit. The contesting defendants while traversing the plaint averments reiterate the fact that the defendant no. 2 was not a party to the said compromise made in the High Court in the second appeal carried in the first round of the litigation, and therefore, said compromise decree is not binding on them. It is also stated that though in the execution proceeding, order has been passed showing delivery of possession, it was actually not so done in the field and the defendants despite the same, have never parted with the physical possession. Ultimately, it is stated that they had acquired title by adverse possession. 4.The trial Court on such rival pleadings, framed nine issues. Answering issue no. 2 which touches the root of the matter as regards allegation of fraud in obtaining compromise decree in the first round of the litigation in the second appeal, the validity of the compromise decree has been found out with categorical finding that the defendants have failed to prove the element of fraud being attached to it. Thus it has been held to be final and binding against all the parties. 5.Next coming to the other two issues as regards possession, the trial Court on evaluation of evidence found that the plaintiffs had taken delivery of possession of the suit land through Court in the execution proceeding wherein the said compromise decree passed by the High Court in the second appeal was put to execution. However, in the year of institution of the suit, the plaintiffs were not found in possession. The alternative case of the defendants that they have perfected the title over the suit land by virtue of adverse possession has been negated holding that the defendants have failed to prove the required elements through acceptable evidence in support of their claim. The issue concerning non-joinder of necessary party has been answered against the defendants and that of the limitation standing as a bar for the suit in view of declaration of the possession of the defendants by the original Court in a criminal proceeding under Section 145 of Cr.P.C. has also been answered in favour of the plaintiffs holding the suit as not barred by law of limitation. In view of all these, plaintiffs’ entitlement for mesne profit for the future has also been found. In view of all these, plaintiffs’ entitlement for mesne profit for the future has also been found. 6.The lower appellate Court being called upon to decide the sustainability of the findings of the trial Court on issue no. 2 upon independent examination of evidence, taking note of the settled position of law has affirmed the said finding of the trial Court and the next contention with regard to the law of limitation standing as a bar to the suit has also been answered in the negative and in favour of the plaintiffs. Accordingly, the trial Court’s judgment and decree have been confirmed. 7.The second appeal has been admitted by order dated 18.06.2001, on the substantial questions of law as indicated in ground nos. 1 and 2 of the memorandum of appeal which run as under : (1) Whether the decision of the Courts below are vitiated for consideration of the effect of Bhogra conversion proceeding in view of specific pleading in para-5 of the written statement and the documentary evidence such as Ext. F,G,H. to H-28, Ext. J,K to P?. (2) Whether in view of the oral and documentary evidence on record, the Courts below should have held that the defendants have perfected their title by virtue of adverse possession?. 8.Learned Counsel for the appellants submits that the Courts below have completely erred in law by holding the compromise decree passed in the second appeal during the earlier round of litigation to be valid and binding. According to him, defendant no. 2 is not the signatory to the said compromise petition and was totally unaware of it, which has been unilaterally done by the defendant no. 1 without any authority to that effect. The Courts below having ignored the above basic factual aspects have simply been swayed away and refrained from saying anything against the compromise decree passed by the High Court. 1 without any authority to that effect. The Courts below having ignored the above basic factual aspects have simply been swayed away and refrained from saying anything against the compromise decree passed by the High Court. Of course, he fairly submits that in so far the first substantial question of law as regards non-consideration of the documents concerning Bhogra conversion proceeding, there being no issue as it was not so pressed in the Courts below as also in the lower appellate Court, the same question having not been raised for being considered and answered now in this second appeal its consideration for the first time may not be permissible to be raised provided of course it is found that the same has no important bearing in the case going to the root. He also contends that before the second substantial question of law is answered, the other important question of law involved in this appeal as regards the suit to be barred by law of limitation is required to be answered as the second one is dependent on the same. The answer to that question as has been rendered by the trial Court and concurred by the lower appellate Court is attached as erroneous. He contends that the suit having not been filed within the period of three years, as it was then as per Article 47 of the Limitation Act, 1908 (for short’ the 1908 Act) more particularly when the trial Court has found the plaintiffs to be in possession of the suit land as one the year of institution of the suit, and when the order declaring their possession in the proceeding under Section 145 of the Code of Criminal Procedure was all along holding the field, the Courts below are not justified in negating the defence of limitation to non-suit the plaintiffs. 9.Learned Counsel for the respondents submits that the findings of the Courts below that the compromise decree passed in the second appeal way back in the year 1953 to be valid and binding and is no more open to challenge. According to him, necessary objection being raised in this regard in the execution case and that being overruled, also the appeal being carried when the order has been confirmed, in no subsequent suit or proceeding, the matter is permissible in law to be agitated for being adjudicated upon. According to him, necessary objection being raised in this regard in the execution case and that being overruled, also the appeal being carried when the order has been confirmed, in no subsequent suit or proceeding, the matter is permissible in law to be agitated for being adjudicated upon. He of course has no disagreement with the submission of the learned counsel for the appellants that the first substantial question of law framed earlier does not arise for consideration for being answered. However, he refutes the submission of the learned counsel for the appellants that the suit is barred by limitation in contending that the Courts below have taken the correct view in consonance with the settled legal position of law that the suit has been filed within the period prescribed as provided under the Limitation Act, 1963(for short ‘the 1963 Act’) as it had come into force on the date of suit. 10.Given a careful reading to the rival pleadings and the judgments of the Courts below, this Court is persuaded to accept the submission that said outcome in the Bhogra conversion proceeding as provided through the documents, Exts. F,G,H to H-28, J,K to P have no such bearing in so far as the rival claims of the parties are concerned. The plaintiffs’ case is founded upon the compromise decree passed in the Second Appeal No. 519 of 1948 and the delivery of possession of the suit land to them on 30.03.1953 in Execution Case No. 305 of 1952. 11.In view of above, this Court at the out set framed the following substantial question of law for being answered and have heard the rival submission of the learned counsel for the parties with regard to that. Whether the Courts below have erred in law in holding the suit to be not barred by law of limitation by not properly construing the provision of Article 47 of the Limitation Act, 1908 and by making it applicable as it was in force when the cause of action for the suit had arisen? In so far as the first submission is concerned, admitted position remains that the second appeal in the High Court was decreed in terms of compromise, wherein the plaintiffs got some extent out of the suit land and the defendants, the rest. In so far as the first submission is concerned, admitted position remains that the second appeal in the High Court was decreed in terms of compromise, wherein the plaintiffs got some extent out of the suit land and the defendants, the rest. It further stands admitted that the said decree was put to execution and in the said execution proceeding an objection had been raised by the defendant no. 2 (Judgment debtor) as regards executability of the said decree attacking it on the ground that it has been obtained by practicing fraud, being not consented to by defendant no. 2 when he was not at all a party to said compromise, having no knowledge about it. The objection having been overruled, then the appeal had been filed and that stood dismissed. 12.At this point it needs the consideration as regards the legal effect of such adjudication of objection on the very grounds now we are concerned so as to thwart the execution of a decree. It is pertinent to mention that during that period, the provisions of the Code of Civil Procedure, 1908 (for short ‘ the 1908 Code’) were holding the field. The provisions of the 1908 Code as it was prior to the coming into force of the Amendment Act, 1976 then holding the field which is reproduced herein below for better appreciation. “47. Questions to be determined by the Court executing decree. – (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court execution the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this Section as a suit or a suit as a proceeding and may , if necessary, order payment of any additional Court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court. (Explanation.- For the purposes of this Section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.) “ On a conjoint reading of the provisions as aforesaid, it is seen that the question relating to the execution, discharge and satisfaction of the decree were permitted to be raised under Section 47 of the 1908 Code and as provided in sub Section 2 of said Section, those were to be determined by the Court in seisin of execution proceeding. The objection giving rise to the proceeding was to be treated as if a suit. So as per the above provision, final order that was passed under Section 47 of the 1908 Code, as if in the suit determining all those questions. For this reason, the definition of decree as contained in sub Section (2) of Section-2 defining the decree, included all these orders of determination of any question within Section 47 of the 1908 Code. In view of that, since the orders had the force and were being treated as decrees, regular appeals under Section 96 of the 1908 Code were the net recourse of challenge. Since the definition of decree used to embrace such orders and the orders were treated as decrees, it was not included as an item for being questioned in ‘appeal against orders’ under Order 43, Rule 1 of the 1908 Code. The Courts below of course have lost sight of the above aspect and thus have not bestowed their attention as to the legal effect that said adjudication has and instead they have gone to examine the matter from a different angel mainly on merit. In view of the above discussion, when the order in the proceeding under Section 47 of the 1908 Code stood confirmed in the appeal and that having reached finality, the same is no more open to be called in question in any subsequent proceeding being wholly barred by law. In view of the above discussion, when the order in the proceeding under Section 47 of the 1908 Code stood confirmed in the appeal and that having reached finality, the same is no more open to be called in question in any subsequent proceeding being wholly barred by law. That is the reason that the 1908 Code had provided the scope to the judgment debtor to raise any further question relating execution, satisfaction and discharge of the decree and if so raised, to be determined in the very execution proceeding without driving the parties to a separate suit and depriving the decree holder if at all entitled to the fruit of the decree for further period to be spent in another suit so as to put an end to the lis for ever. In case of objection to the executability, discharge and satisfaction of the decree, there was thus arising a second suit in the form of an application under Section 47 of the 1908 Code and also appeal etc. which is not the position after the Amendment Act of 1976 in the Civil Procedure Code at it now stands. The order under Section 47 of the Code no more falls within the definition of ‘decree’ nor even finds place as an appealable order. The Courts below have gone to consider the challenge as regards the fraud on merit which was not necessary in view of the aforesaid discussion and the issue in that way gets its answer in the negative in view of legal provisions and their analysis. 13.Admittedly, the compromise petition was filed by the counsel for the parties, and it was on behalf of the appellants Bhaja Sahu and Madhu Sahu. Madhu Sabu is questioning the compromise and he claims that the said decree is not binding upon him. There is no objection from the side of Bhaja Sahu. The compromise petition had been signed by Mr. Pitambar Acharya, Advocate for the appellants. The requirement that a party has to sign the compromise petition now stands as per the provision of under Order 23, Rule 3 of the Code after Amendment Act, 1976 came into force. There is no objection from the side of Bhaja Sahu. The compromise petition had been signed by Mr. Pitambar Acharya, Advocate for the appellants. The requirement that a party has to sign the compromise petition now stands as per the provision of under Order 23, Rule 3 of the Code after Amendment Act, 1976 came into force. As per the prior position of law, an appointed advocate had an implied authority to enter into a compromise on behalf of his client and that compromise was binding on his client and therefore, there was no necessity to expressly confer any authority for the purpose upon the advocate concerned. Referring to the provision of Section 2(15) of the 1908 Code which defined ‘pleader’, the Hon’ble Apex Court in case of Smt. Jamilabai Abdul Kadar vrs. Shankarlal Gulab Chand and others; AIR 1975 S.C. 2202 has upheld the actual, though implied authority of a pleader to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two overriding consideration: (i) He must act in good faith and for the benefit of his client, or otherwise the power fails; (ii) It is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case if there is any instruction to the contrary or withdrawal of authority, the implied power to compromise in the pleader will fall to the ground. In the case of Employers in relation to Manoharbahal Colliery, Calcutta vrs. K.N. Mishra and others reported in AIR 1975 S.C. 1632 , where a memorandum of compromise was signed by the counsel of a party and there was no express prohibition from the client to the counsel to enter into any compromise on his half, the compromise entered into by the counsel was held to be binding on the client. Thus on merit also the challenge does not stand for acceptance which has been rightly so negated by the Courts below. Thus on merit also the challenge does not stand for acceptance which has been rightly so negated by the Courts below. 14.Adverting to the question of limitation, it is not in dispute that in respect of the suit land, there was a proceeding under Section 145 of the Code of Criminal Procedure and in that proceeding finally, the original Court by a summary enquiry passed an order declaring the possession of the defendants which was confirmed in the revision and subsequently also not interfered by the High Court. The learned Magistrate passed the order on 18.11.1961 and the Sessions Judge disposed of the criminal revision on 18.01.1963. Thereafter, it is said that although this Court was moved in another revision, no fruitful result yielded therein. Of course, the date of order of the High Court is not stated and also the number of revision not given. If the pleading is accepted, certainly further revision must have been in the year 1963 followed by order. Article 47 of the 1908 Act was restricted in the case of immovable property. It had no application to a case where at the time of passing of the Magisterial order, there was no existing legal right in the plaintiff to sue for possession and such a right accrued to him only subsequent to that date. In other words, Article 47 did not use to stand as a bar in claiming the relief on the footing to a subsequently acquired title. The article in order to come into play, the plaintiff must be a person bound by the order respecting the immovable property, made in the Code of Criminal Procedure and that the suit must be one of recovery of the property comprised in Magisterial order. 15.The lower appellate Court having regard to all these has held the suit to be not barred by limitation by computing the commencement of the period of three years from the date of passing of the order by the learned Magistrate. Holding that when the period of limitation was to expire on 18.11.1964, as per said Article 47 of the 1908 Act by that date already the 1963 Act had come into force and the 1908 Act stood repealed. Holding that when the period of limitation was to expire on 18.11.1964, as per said Article 47 of the 1908 Act by that date already the 1963 Act had come into force and the 1908 Act stood repealed. So it has been said that before expiry of the limitation for the suit under the 1908 Act, the 1963 Act having come into force, the provision of the latter Act would govern the field in computing the limitation for institution of the suit. The view taken is wholly in consonance with the settled principle of interpretation of the statue. As per the 1963 Act, the period of limitation for filing the suit by a title holder for possession based n title has been provided under Article 65 to be 12 years from the date when the possession of the opponent stands to rum as adverse and there remains no such Article corresponding to the Article 47 of the 1908 Act thus it is also left to be covered by this Article 65 of the 1963 Act. The law of limitation being a law of procedure in that sense is retrospective in operation. Therefore, the law of limitation governing a suit or proceeding is the law in force as on the day of institution of the suit or proceeding not withstanding that the date of cause of action which may have arisen before the commencement of the new provision and which are not barred by the repealed Act so provided in Section 31 of the 1963 Act. The present suit is thus found to be well within that period of limitation and in that event there can never arise a case of acquisition of title by adverse possession in so far as the suit land is concerned as advanced by the defendants. 15.Resultantly, the appeal fails. No order as to costs. Appeal fails.