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2016 DIGILAW 173 (ORI)

Janaki Naikani v. Narasingha Naik

2016-03-02

D.DASH

body2016
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Koraput in T.A. No. 29 of 1986 setting aside the judgment and decree passed by learned Sub-ordinate Judge, Jeypore (as it was then) in T.S. No. 73 of 1983. The trial Court had decreed the suit declaring the title of the appellant no. 1 over the suit land and had directed the defendant respondents to deliver vacant possession of the suit property and also to pay damage. The lower appellate Court has allowed the appeal filed by the aggrieved respondents (defendants) and has dismissed the suit reversing the findings of the trial Court and also the result thereof. So, the appellants being the unsuccessful plaintiffs have been filed this appeal. It may be stated here that during pendency of this appeal, appellant no.1 (plaintiff no. 1) died. The respondent-defendants raised an objection for further progress of the appeal for its disposal in accordance with law contending that the appellant no. 1 (plaintiff no. 1) having died without leaving any legal representative in whose favour, the right sue survives, the appeal has to abate. The appellant no. 2 on the basis of his status as the adopted son of Kalia and Janaki (appellant no. 1 plaintiff no. 1) urged that the right to sue survives in his favour and thus he can very well pursue the appeal further. In such state of affairs, this Court had directed the trial Court to make an inquiry as provided under the proviso to order 22, rule 5 of the Code of Civil Procedure by taking evidence from both the sides and transmit its view. The trial Court in compliance to the said order has arrived at a conclusion after analyzing the evidence both oral and documentary placed by the parties before it, that appellant no. 2 is the adopted son of Kalia and Janaki. Although objection has been raised to the said report, this Court having carefully read the enquiry report submitted by the trial Court finds that upon detail and critical examination of the evidence on record, the trial Court has arrived at the conclusion as regards the status of appellant no. 2 as the adopted son of appellant no. Although objection has been raised to the said report, this Court having carefully read the enquiry report submitted by the trial Court finds that upon detail and critical examination of the evidence on record, the trial Court has arrived at the conclusion as regards the status of appellant no. 2 as the adopted son of appellant no. 1 and there remains no such infirmity therein so as to be taken note for the present purpose particularly when its not the requirement of law that for the purpose it is required to be conclusively established as if in a suit. Therefore the report is hereby accepted. 2.For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3.The case of the plainitiffs is that the defendants are the sons of Hari Naik whose brother is Kalia. The plaintiff no. 1 is Kalia’s widow and the other plaintiff is his adopted son. It is stated that in a partition between Hari and Kalia, the homestead bari land under plot no. 267/2 (suit land) over and above the lands under Khata No. 41 of village Bhoyaguda had been allotted in the share of Kalia and he was in possession of the same exclusively on the basis of his right, title and interest. It is stated that after the death of Kalia in the year 1973, the plaintiffs have been in possession of the said land over which some fruit bearing and other trees also stand. It is alleged that as the defendant no. 5 forcibly occupied the suit land, and as there remained the apprehension of breach of peace, a proceeding under Section 144 of the Criminal Procedure Code was initiated. In January 1983, the defendant no. 5 removed two blackberry trees standing over the said suit land and that finally led the plaintiff to file the suit for declaration of their right, title and recovery of possession and permanent injunction as also damage. It is further stated for such high handed action of the father of defendant no. 1 and also the defendants, Title Suit NO. 5 removed two blackberry trees standing over the said suit land and that finally led the plaintiff to file the suit for declaration of their right, title and recovery of possession and permanent injunction as also damage. It is further stated for such high handed action of the father of defendant no. 1 and also the defendants, Title Suit NO. 20 of 1971 was filed in the Court of Sub-Judge, Jeypore and said suit was decreed with the finding that the partition as per the document dated 03.11.1965 had taken place and Kalia’s title and possession over the land allotted to his share had also been found out. The defendants and their predecessors in interest, Hari having filed First Appeal and Second Appeal had not be able to upset the said judgment and decree passed in T.S. No. 20 of 1971. 4.The defendants while traversing the plaint averments have gone to assert their joint ownership denying the factum of partition. Though they have admitted the relationship of plaintiff no. 1 as the widow of Kalia the status of the plaintiff no. 2 as the adopted son of Kalia stands denied. It is their case that since the properties were joint and as Kalia had abandoned the suit village and remained at Jeypore for 30-35 years, they have been in possession of the suit properties including two houses standing thereon. A case of acquisition of title over the suit land by way of adverse possession has also been projected by them. Most importantly out of all other technical pleas, they had raised an issue that the present suit is barred under the provision of Order-2 of the Code of Civil Procedure. 5.The trial Court having framed ten issues, inview of the above rival pleadings of the parties has gone to record the finding that plaintiff no. 1 is the owner of the suit house being the widow of Kalia and that plaintiff no. 2 is having no right as he is not the adopted son of Kalia. It has next found the possession of the suit ;house to be resting with the defendants and in view of their own case that the property is joint family property said possession has been held to be in no way helpful in establishing there case of perfection of title by adverse possession. It has next found the possession of the suit ;house to be resting with the defendants and in view of their own case that the property is joint family property said possession has been held to be in no way helpful in establishing there case of perfection of title by adverse possession. So far as the important technical challenge made by the defendants as regards the maintainability of the suit saying that it is not hit under the provision of order -2 rule 2 C.P.C. and also not barred by resjudicata, the answers of the trial Court have been rendered in favour of the plaintiff No. 1 negating the challenge made by the defendants on those score. Thus, the suit having been decreed in the first appeal under Section 96 of the Code of Civil Procedure, the lower appellate Court has very rightly taken up the question of maintainability of the suit as raised by the defendants as to whether it is hit under the provision of Order -2 Rule-2 of the C.P.C. and if barred by the principle of resjudicata. Finally upon detail analysis of the pleadings of the parties also the judgments rendered in the earlier suit i.e., T.S. No. 20 of 1971 has confirmed in appeal, has come to conclude that the suit is barred under the provision of Order-2 Rule 2 of the Code, as the cause of action for both the suits are one and the same and as in both the suits, the evidence touching the title of the suit property remain the same being based on that very document. Next it has also gone to say that the suit is also barred by resjudicata. Of course the case of the defendants as regards perfection of title by adverse possession has been negative affirming the finding of the trial Court on it. In view of findings that the suit is hit under the provision of Order-2 Rule-2 of the Code and barred by the principle of resjudicata, the plaintiff’s suit has been dismissed. 6.The appeal has been admitted on the following substantial questions of law as indicated in ground no. In view of findings that the suit is hit under the provision of Order-2 Rule-2 of the Code and barred by the principle of resjudicata, the plaintiff’s suit has been dismissed. 6.The appeal has been admitted on the following substantial questions of law as indicated in ground no. B and D of the memorandum of appeal which run as under:- “(B) For that, the present suit (T.S. No. 73 of 1983) has been filed in respect of plot No. 267/2 of declaration of the title and recovery of possession and for permanent injunction and damages. The earlier suit (T.S. No. 20 of 1971) filed by the husband of the present plaintiff no. 1 and ultimately decreed and confirmed in the Second Appeal was in respect of Plot Nos. 272 and 273. The cause of action for the two suits are also different. In the earlier suit, the cause of action was for disturbance over possession and plucking the seeds from the tamarind trees. In the present suit of 1983, the cause of action arose on a declaration in the 145 proceeding that the defendant no. 5 was in possession of the property. Accordingly, the suit property is being different and the cause of action is being different, the present suit is not barred by resjudicata or principles under order-II Rule-2 CPC. (D). For that, the cause of action and the matters in issue in the present suit being totally different from those in the earlier suit of 1971 the learned Lower Appellate Court committed grave error of law in dismissing the suit under Order-2 Rule2 and under Section 11 of the C.P.C. 7.In advancing the submissions touching the substantial questions of law, learned counsel for the appellants submits that in T.S. No. 21 of 1971 filed by Kalia, the predecessor in interest of the plaintiffs and through whom the plaintiffs claim the suit property, the trial Court had given a finding of previous partition between Kalia and Hari in respect of their joint family properties as has been recognized by the separate recording under Ext. 5. On that basis, the trial Court had granted relief of injunction to Kalia which has been confirmed all thorough in the First Appeal and Second Appeal. 5. On that basis, the trial Court had granted relief of injunction to Kalia which has been confirmed all thorough in the First Appeal and Second Appeal. So, he submits that when there is no bar for the subsequent suit for recovery of possession on the basis of title, the subsequent suit can never get hit by the provision of Order -2 Rule -2 of the Code as also the principle of resjudicata are not attracted. The lower appellate Court’s view with regard to those is urged to be erroneous. According to him, both the suits are based on distinct cause of action. He further contends that the issues framed in the earlier suit are quite different from the present one. Therefore, when the concurrent finding has remained that the defendants have not perfected by title of adverse possession and it is based on sound appreciation of evidence on record in the touchstone of the settled principle of law holding the field, the lower appellate Court ought not to have gone to dismiss the suit of the plaintiffs denying them to the entitlement to the reliefs which has been granted by the trial Court. 8.Learned counsel for the respondents having placed reliance upon the decision of the Apex Court in case of Mst. Sugani Vrs. Rameswar Das and Another; AIR 2006 SC 2172 submits that in a second appeal, it is not within the domain of the High Court to investigate the grounds of which the findings were arrived at by the lower appellate Court, the last Court of fact. And the High Court cannot substitute any judgment over the opinion of the first appellate Court unless it finds that the conclusion drawn by the lower appellate Court are erroneous being contrary to the mandatory provision of law applicable or the settled position on the basis of pronouncement made by the Apex Court or to have been based on inadmissible evidence or arrived at without evidence. It is further submitted that when the first appellate Court is seen to have exercised its discretion in judicious manner, it cannot be termed to be an error either of law or of procedure requiring interference of this Court in this second appeal. It is further submitted that when the first appellate Court is seen to have exercised its discretion in judicious manner, it cannot be termed to be an error either of law or of procedure requiring interference of this Court in this second appeal. He strenuously argues that the lower appellate Court on a thread bare examination of the pleadings of both the suits as also the judgments passed in the earlier suit has arrived at a right conclusion that the suit is barred under the provision of Order-2 Rule 2 of the Code and under the principle of resjudicata. In order to provide strength to the view taken by the lower appellate Court, he has placed reliance upon the ratio of the decision of the Apex Court in case of Virgo Industries (Engineering) Pvt. Ltd. Vrs. Venture Tech & Solutions Pvt. Ltd; 2013 (1) SCC 625 . Thus, he finally contends that the substantial questions of law in the case have to receive their answers in support of the view taken by the lower appellate Court and accordingly the appeal is liable to be dismissed. 9.The settled law is that if the cause of action for the first and subsequent suit is same and if in order to prove the cause of action in both the suits, the same set of evidence is relied upon, with the parties to the suit remaining the same and when the relief claimed in the subsequent suit, was available to the plaintiffs for being claimed the first suit, the second suit is barred under the provision of Order- 2 Rule-2 of the Code. In other words, if the cause of action are not the same and those are distinct, the provision of Order-2 Rule -2 of the Code do not stand in the way of the subsequent suit to proceed for its disposal on merit and in accordance with law. 10.In order to proceed to find out the appropriate answer to the substantial questions of law by addressing the rival submissions before entering into the arena of the discussion which would follow for better appreciation, the provision of Order-2 Rule 2 of the Code are extracted herein below:- Order-II 2. 10.In order to proceed to find out the appropriate answer to the substantial questions of law by addressing the rival submissions before entering into the arena of the discussion which would follow for better appreciation, the provision of Order-2 Rule 2 of the Code are extracted herein below:- Order-II 2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim, in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwords sue for any relief so omitted. Explanation. –For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. 11.At this stage, let’s also have a reading to the principles set out by the Hon’ble Apex Court so as to guide the second appellate Court in reminding its power to interfere with the finding of the first appellate Court, the final Court of fact describing the circumstances. For the same, the relevant paras of the judgment of the Apex Court in case of Mst. Sugani (supra) as noted herein below are noteworthy:- xxxxx xxxxx xxxx xxxx xxxx “15. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the Court did not involved any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice it done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence.” 16.It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts however erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. The concurrent findings of facts however erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.: AIR 1962 SC held that: The proper test for determining whether a question of law raised in the case in substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative view. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 17.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact. It is true that the lower appellate Court in respect of credibility but even where it has rejected the witness accepted by the trial Court, the same is no ground for interference in second appeal, when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 18.If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in the second appeal. Xxxxx.” 12. Adverting to the point under consideration, suffice it to say that in order to come to a conclusion as to whether the subsequent suit is barred by provision of Order -2 Rule-2 of the Code, it is first of all required to be seen as to whether the plaintiff had prosecuted the earlier suit and is now pursuing the subsequent suit under the same cause of action while side by side examining as to whether the cause of action indicated in the subsequent suit though in fact concerns with the cause of action of the earlier suit if it has been so twisted to circumvent the provision of Order-2 Rule-2 of the Code. Next it is required to seen as to whether the plaintiff could have well sought for the relief/reliefs in the earlier suit which he is now seeking in the subsequent suit. Admittedly, in the earlier suit, the plaintiff has not taken the leave of the Court for claiming any such relief/reliefs which are now claimed and which were omitted from being claimed in the earlier suit. 13.The Hon’ble Apex Court in case of Virgo Industries (Engineering) Pvt. Ltd. (Supra) while going to address the point of applicability of the provisions of Order-II Rule-2 of the Code as held as under:- “9. Order –II Rule-1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order-II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order-II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order –II Rule 2 of Code of Civil Procedure makes it clear that he shall not, afterwards, due for the part or portion of the claim that has been omitted or relinquished. It must be noticed that order II Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the Court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the Court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II Rule 2(2) in and (3) of the Code of Civil Procedure that the aforesaid two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission on claim the particular relief he had obtained leave of the Court in the first suit.” 10.The object behind enactment of Order II Rule 2(2) and (3) of the Code of Civil Procedure is not for to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the Defendant again and again by multiple suits except in a situation where one of the suit several reliefs, though available to a Plaintiff, may not have been claimed for a good reason. The Rule engrafts a laudable principle that discourages/prohibits vexing the Defendant again and again by multiple suits except in a situation where one of the suit several reliefs, though available to a Plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the Court which leave, naturally, will be grated upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order II Rule 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. Though each of the aforesaid decisions contain clear and precise narration of the principles of law arrived at after a detailed analysis, the principles laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh v. Bhooralal; AIR 1964 SC 1810 may be usefully recalled below:- In order that a plea of a bar under Order 2 Rule-2(3), Civil Procedure Code should succeed the Defendant who raises the plea must make out (1) that the second suit was in respect of this same cause of action as that on which the precious suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Curt, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. The above principles have been reiterated in several later judgments of this Court. Reference by way of illustration may be made to the judgments Deva Ram and Anr. V. Ishwar Chand and Anr: 1995 (6) SCC 733 and Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Co. and Anr. : AIR 1997 SC 1398 . 11. The above principles have been reiterated in several later judgments of this Court. Reference by way of illustration may be made to the judgments Deva Ram and Anr. V. Ishwar Chand and Anr: 1995 (6) SCC 733 and Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Co. and Anr. : AIR 1997 SC 1398 . 11. The cardinal requirement for application of the provisions contained in Order II Rule 2 (2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression, i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. Ponniamman Educational Trust represented by its Chariperson/Managing Trustee: JT 2012 (6) SC 149. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury’s Law of England, (4th Edition). The following reference from the above work would, therefore, be apt for being extracted herein below: Cause of action” has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which he defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular action the part of the Defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.” 14.On the anvil of the above settle position law as enunciated by the Hon’ble Apex Court, the conclusion of the lower appellate Court requires t he examination. The plaint of the earlier suit i.e., T.S. No. 20 of 1971 has been admitted in Evidence and marked as Ext. A. The relevant pleadings therein are as follows:- “(1) There was a partition between Kalia and Hari about 40 years back (from the date of filing of that suit) and the partition was acknowledged vide the document dated 03.11.1965. The plaint of the earlier suit i.e., T.S. No. 20 of 1971 has been admitted in Evidence and marked as Ext. A. The relevant pleadings therein are as follows:- “(1) There was a partition between Kalia and Hari about 40 years back (from the date of filing of that suit) and the partition was acknowledged vide the document dated 03.11.1965. Adjoining his homestead land which is in his possession, he possesses plot nos. 272 and 273 covered by the Khata No. 41 and plaintiff had planted mango-trees and five tamarind trees. (2) On 15.12.1970 and subsequently Hari, the defendant No. 1 and his sons, the defendant Nos. 2 to 6 trespassed into the lands and removed the tamarinds from the 5 trees which speaks of the fact that the defendants were bent upon to disturb the possession of the plaintiffs. (3) Under such pleadings, he prayed for declaration of title, confirmation of possession and for issue of permanent injunction restraining the defendants from entering upon the suit land and also to grant damages for plucking the tamarinds. (4) In the schedule, plot Nos. 272 and 273 were described as the disputed case land.” The defendants therein had denied the averments on factum of partition and also the claim of exclusive title of plaintiff (Kalia) over the land under plot no. 272 and 273 stating further that the tamarind trees stand on another plot under their possession. It also reveals that in view of the specific dispute and looking at the reliefs claimed in the said suit, a Survey Knowing Commissioner had been deputed to ascertain the location and positioning of those tamarind trees in the field. His report had been admitted in the said suit as Ext. A which in the present case has been marked as Ext. C. It had been categorically stated therein that four out of five tamarind trees were standing on the land involved in the present suit which is the second one under plot no. 267, which is paramboke i.e. homestead land. It is seen from the certified copy of the judgment Ext. 2 of the earlier suit that a finding had been rendered that there was a partition between Hari and Kalia and land under plot No. 272 and 273 had fallen in the share of Kalia and was in his exclusive possession. 267, which is paramboke i.e. homestead land. It is seen from the certified copy of the judgment Ext. 2 of the earlier suit that a finding had been rendered that there was a partition between Hari and Kalia and land under plot No. 272 and 273 had fallen in the share of Kalia and was in his exclusive possession. So, Kalia was found to be the owner of the tamarind trees and the defendants as the trespassers had been found to have plucked the tamarind which had led the trial Court to grant the decree for compensation in favour of the then plaintiff (Kalia), the predecessor-in- interest of the present plaintiffs who claim through him and litigate under same title. The defendants having been found to be having no title over the above tow plots of land and disturbing the possession of the plaintiff, the right, title and interest of the plaintiff over the land under plot no. 272 was declared, his possession was confirmed, and accordingly the defendants were permanently injuncted. In the first appeal, the factum of partition as held by the trial Court has been affirmed. Kalia’s title and possession over the lands plot no. 272 and 273 was found and so also his possession. However, the allegation that the tamarind trees to be standing on the land under plot no. 273 was found to have not been proved and rather the lower appellate Court on that occasion had specifically rendered a finding that the land under plot 267 (land in suit in the present one) had not fallen in the share of plaintiff. So, finally the judgment and decree passed by the trial Court was not set aside. However, in second appeal, the contention of the defendant- appellant that Ext. 5 was not a deed of acknowledgement of prior partition was negatived and in that view of the matter, the second appeal was dismissed. Fact remains that Kalia had not filed a cross-objection against the finding recorded against him in so far as the land under plot no. 267 is concerned and also with regard to the finding that he has failed to prove that tamarind trees were standing on the land under plot no. 273. Fact remains that Kalia had not filed a cross-objection against the finding recorded against him in so far as the land under plot no. 267 is concerned and also with regard to the finding that he has failed to prove that tamarind trees were standing on the land under plot no. 273. The plaintiffs are claiming the right, title and interest over the suit land in the subsequent suit through Kalia who was the plaintiff in the earlier suit and these defendant No. 1 to 5 are the brother’s sons of Kalia who were also defendants in the earlier suit. From all these, and particularly from the reliefs claimed it becomes clear that the first suit was in essence in respect of the land under plot NO. 267/2 over and above the land under plot no. 272 and 273. The plaintiff in the said suit i.e., Kalia, the predecessors in interest of the present plaintiffs had not included the plot NO. 267/2 in the schedule of the earlier plaint which he should have done for claiming the required and appropriate reliefs. 15.So far as the cause of action is concerned, the plaintiffs in this suit contends that the same arose when the Executive Magistrate declared the possession of the suit land in favour of defendant no. 5, whereafter being emboldened by the said order, the defendant no. 5 went and cutaway the standing trees and constructed a hut. Undeniably the first suit was filed on the allegation that the defendants plucked tamarind from five tamarind trees and four out of those five tamarind trees have been wholly established to be standing over the land under plot no. 267/2 which is the suit plot in the present suit and this defendant had very much claimed the possession of the land under plot no. 267/2 asserting very much that the tamarind trees were standing over that land. For claiming the ownership over the plot no. 272 and 273 and also the land under plot no. 267/2 over which it is established that the tamarind trees were standing and which is the suit land of the subsequent suit; reliance is placed upon the documents Ext. 1, the deed of acknowledgement of prior partition which was marked as Ext. 5 in the first suit. Undeterred by all those, land under plot no. 267/2 over which it is established that the tamarind trees were standing and which is the suit land of the subsequent suit; reliance is placed upon the documents Ext. 1, the deed of acknowledgement of prior partition which was marked as Ext. 5 in the first suit. Undeterred by all those, land under plot no. 267/2 had not been made the subject matter of the earlier suit and no relief/reliefs in respect of said land was/were claimed at least for confirmation or recovery of possession. The plaintiff of the first suit, Kalia remained wholly satisfied with the decree in his favour in respect of the subject matter of the said suit i.e., land under plot no. 272 and 273. In such state of affair applying the principles as set out by the Apex Court, the provision of Order-2 Rule 2 of the Code comes into play so as to be applied in the present suit as essentially the cause of action of both the suits remains the same, as also the evidence to establish the title. In the aforesaid discussion and reasons, this Court thus finds that the lower appellate Court in finally rendering the finding against the appellant in holding their suit to be barred under the provision of Order-2 Rule2 of the Code did commit no mistake and the same is found to be based on proper analysis. Dr. D.P. CHOUDHURY, J. W.P.(C) No.20390 of 2011 (Date of Judgment : 07.10.2016) In the matter of an application under Articles 226 and 227 of the Constitution of India. Bijaya Gobinda Dash & others … Petitioners Versus Director, Orissa State Agricultural Marketing Board & others … Opp. Parties For Petitioners :Mr. B. Ch. Sahu For Opp. Parties : Miss S. Ratho,Additional Government Advocate(For opposite party Nos.1 and 2) M/s. S.K. Ray & S.P. Swain (For opposite party Nos.3 and 4) ODISHA AGRICULTURAL PRODUCE MARKETS ACT, 1956 - Sec. 9 - Petitioners appointed as Market Guard/Junior Clerk and subsequently appointment was cancelled and they were not allowed to work - Writ - Discussing the facts, contention and provisions of law held, it is clear that the engagement of the petitioners as DLR’s is illegal and subsequent engagement on contractual basis is also not legal being dehors to the provisions of the Act and the Rules made thereunder - Petitioners not entitled to any relief as prayed for. JUDGMENT Dr. JUDGMENT Dr. D.P. CHOUDHURY, J. - Challenge has been made to the inaction of the opposite parties for not approving the appointment of the petitioners and to allow them to continue in the same post to which they are entitled to continue. FACTS 2. The factual matrix leading to the case of the petitioners is that the petitioners were appointed as Market Guard/Junior Clerk after observing all formalities of appointment and they continued for five years. The appointment was made under Section 9 of the Odisha Agricultural Produce Markets Act, 1956 (hereinafter called ‘the Act’). The Market Committee has also received Rs.2,000/- from each of the petitioners as security deposit. While they were working as such a letter dated 27.11.2011 vide Annexure-7 was issued cancelling the appointment of 35 DLRs including the present petitioners and they were not allowed to work. So, the petitioners had to approach this Court. 3. Per contra, the opposite parties filed counter refuting the allegations made against the opposite parties. It is the case of the opposite parties that the previous Secretary of the Regulated Marketing Committee (for short ‘the RMC’), Jajpur without approaching the opposite party Nos.1 and 3 issued the appointment letter without having jurisdiction and therefore, the said appointment has been cancelled by the letter dated 27.1.2011. The opposite parties also denied the receipt of Rs.2,000/- from each of the petitioners as security deposit and the resolution of the RMC dated 8.3.2011 in support of the appointment of the petitioners is totally fraud being not in accordance with the Act and the Rules. It is further averred inter alia that the opposite party No.1 has not approved the appointment of the petitioners for which such appointment cannot be considered legal. It is averred that for the illegalities committed by the previous Secretary of the RMC, a Departmental Proceeding has been initiated. As the appointments of the petitioners have not been made according to law and procedure, there is no cause of action for the petitioners to file this writ petition. 4. The petitioners filed the rejoinder stating that the petitioners while working as DLRs were receiving remuneration and accordingly receipts of such remuneration are filed. As the appointments of the petitioners have not been made according to law and procedure, there is no cause of action for the petitioners to file this writ petition. 4. The petitioners filed the rejoinder stating that the petitioners while working as DLRs were receiving remuneration and accordingly receipts of such remuneration are filed. Be it stated that the appointment of the present petitioners by the then Secretary of RMC, Jajpur was rightly issued in accordance with the Act and the Rules because the Market Committee is the appointing authority under the Act and the Rules made thereunder. In the rejoinder the petitioners have also stated that the letter dated 19.6.2008 was issued by the opposite party No.1 to opposite party No.4 to make posting of staff from 1.7.2008 in all categories including Guards in Check posts. They also challenged the letter issued by the Chairman, RMC, Jajpur which is otherwise illegal and arbitrary. SUBMISSIONS 5. Mr. B. C. Sahu, learned counsel for the petitioners submitted that Section 9 (1) of the Act has empowered the Market Committee to employ such officers and employees as may be necessary for the management of the market and may pay such officers and employees such salaries as the Market Committee thinks fit. As such the Market Committee passed a resolution on 8.3.2011 to engage 35 numbers of outsiders as DLRs including the petitioners and out of that 14 DLRs including the present petitioners were appointed as Market Guard/Junior Clerk and Market Supervisor on contractual basis and the Committee allowed the Secretary to issue appointment order maintaining all formalities. He further submitted that in pursuance of the resolution appointment orders have been issued vide Annexure-4 series to the petitioners on 16.3.2011 after which they have deposited Rs.2,000/- each as security deposit vide Annexure-3 series. He further submitted that in pursuance of the resolution appointment orders have been issued vide Annexure-4 series to the petitioners on 16.3.2011 after which they have deposited Rs.2,000/- each as security deposit vide Annexure-3 series. Learned counsel for the petitioners further submitted that in view of the unambiguous provisions of the Act and the Rules made thereunder, the Market Committee has got all authority to appoint or engage the officers of the staff by the Committee and as per Rule 33 made under the Act the opposite party No.1 has got all power of superintendence and control over the RMC and with the previous approval of the Board vide Annexure-6 the present appointment has been made for which it cannot be said that without approval of the Board engagement/appointment was made by the opposite party No.4. So, he submitted to allow the petitioners to continue in their respective posts by regularizing them against the posts they are engaged on contractual basis. 6. Learned counsel for the opposite parties submitted that proviso to Rule 33 of the Rules made under the Act read with Section 9 and 18-B of the Act made it mandatory to approve the appointment of the officers and employees of the RMC before they are appointed because it is clearly mentioned that superior officers of the Committee shall be appointed only with the previous approval of the Board. He also submitted that as per sub-rule (2) of Rule 33 made under the Act has clarified that superior Officers shall be Secretary, Clerks and such officers and servants of the Market Committee as the Board may determine from time to time. According to him since the appointment of the petitioners and others have been made without approval of the Chairman, RMC, Jajpur and the OSAM Board, the appointments have been cancelled by order dated 27.1.2011, the present petitioners have no cause of action to continue as DLRs and consequently to regularize their service as Market Guard/Junior Clerk or Market Supervisor. It is further submitted as the then Secretary, RMC, Jajpur has issued letter of engagement to 35 outsiders to function as Market Guard on daily wage basis without any approval of OSAM Board, he has also proceeded departmentally and accordingly charge has been framed against him. It is further submitted as the then Secretary, RMC, Jajpur has issued letter of engagement to 35 outsiders to function as Market Guard on daily wage basis without any approval of OSAM Board, he has also proceeded departmentally and accordingly charge has been framed against him. Learned counsel for the opposite parties drew the attention of the Court to letter dated 17.12.1999 to the effect that the opposite party No.1 has issued a general letter to all RMCs of the State stating that the appointment issued without approval of the Board should be cancelled and the future appointment should be made only with the prior approval of the Board. So, he submitted that the entire engagement of the petitioners as DLRs being illegal, the subsequent engagement of the petitioners along with other persons out of the said 35 DLRs being not approved by the Board is also illegal. So, he submitted to dismiss the writ petition. 7. The main points for consideration:- (i) Whether the appointment of the petitioners are legal and proper. (ii) What are the reliefs the petitioners are entitled to. DISCUSSIONS POINT NO.(i) : 8. It is relevant to spell out the law on the matter before going to discuss the facts of respective parties. Section 9 of the Act states as follows:- “9. Employment of staff - (1) The Market Committee may employ such officers and employees as may be necessary for the management of the market and may pay such officers and employees such salaries as the Market Committee thinks fit. (2) The Market Committee shall, in the case of any officer or employee of Government whom it employs, make such contributions towards his pension, gratuity and leave allowances as may be required by the conditions of his service to be paid by him or on his behalf. (3) The Chairman, Vice-Chairman, the Secretary and other officers and servants of the Board and Market Committee shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code”. (3) The Chairman, Vice-Chairman, the Secretary and other officers and servants of the Board and Market Committee shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code”. It is also relevant to quote sub-section (1) of Section 18-B of the Act which speaks as follows:- “18-B.Powers and functions of the Board- (1) The Board shall, subject to the provisions of this Act, exercise the following powers, namely : (i) superintendence and control over the working and other affairs of the Market Committees including programmes under taken by such committees for the development of markets and market areas; (ii) giving direction to Market Committees in general or any Market Committee in particular with a view to ensuring efficiency thereof; (iii) approval of proposals for selection of sites by a Market Committee for development of market”. 9. From perusal of both the provisions, it is clear that the Market Committee as defined in the Act has got power to appoint such officers and employees as may be necessary for the management of the market and accordingly the Market Committee would make the payment of salaries. The Board has got power of superintendence and control over the working and other affairs of the Market Committees including programme etc. In order to enhance efficiency of the Market Committee necessary direction may be given by the Board. So, the Board can be taken as a policy decision maker of RMCs. But the Market Committee enjoys the power of engagement or deployment or appointment of the officers and the employees of the Market Committee. 10. Rule 33 being framed under the Act by virtue of Section 27 of the Act endowed on the State Government is as follows:- “33. Servants of the Market Committee- (1) The Market Committee may appoint such officers and servants as may be necessary for the proper management of the market : Provided that the superior officers of the Committee shall be appointed only with the previous approval of the Board. (2) Superior Officers shall be the Secretary, Clerks and such officers and servants of the Market Committee as the Board may determine from time to time. (3) The terms and conditions of service of superior officers shall be such as may be approved by the Board and those of others shall be such as the Market Committee may decide from time to time. (3) The terms and conditions of service of superior officers shall be such as may be approved by the Board and those of others shall be such as the Market Committee may decide from time to time. (4) The Market Committee shall be the Disciplinary Authority in respect of all officers and servants of the Committee : Provided that the removal or dismissal of superior officers as a measure of punishment shall be subject to the approval of the Board.” Proviso to sub-Rule (1) of Rule 33 being a rider to the appointment of the officers and servants of the Market Committee has given power to the Board to approve the appointment of the superior officers of the Market Committee. Sub-Rule (2) of Rule 33 explains as to who are the superior officers and it includes the Secretary, Clerks and such officers and servants of the Market Committee as the Board may determine from time to time. Sub-Rule (3) read with sub-Rule (4) make it clear that the terms and conditions of service of superior officers may be approved by the Board and accordingly the Market Committee would decide from time to time and it is for the Market Committee to take disciplinary action against all officers and servants of the Committee but for dismissal or removal of such superior officers should be subject to the approval of the Board. From the conjoint reading of the aforesaid provisions of the Act and the Rule, it is made available that the Board can exercise the power of superintendence having framed the policy and the criteria for the appointment of officers and employees of the Market Committee and the Market Committee is bestowed with the obligations to follow the guidelines or the policy framed by the Board. At the same time, the Market Committee enjoys the power of appointment to the posts of officers and servants duly created by the Board. Necessary previous approval before appointment of the staff is mandatory for the reasons that the Market Committee would only appoint or employ the numbers of staff created by Board and pay the salaries by following principle of uniform procedure, but that does not mean that the Board will absolutely sit over the decision of the RMCs to point out as to whom the appointment or engagement should be made by the Market Committee. If at all there is any indiscipline or any violation of the policy or criteria made by the Board for appointment or engagement of the officers and staff of the Market Committee, then only the Board would interfere, otherwise not. If the Board is given the unbridled power to interfere with each appointment/engagement of the officers and the employees of the Market Committee then the provisions of Section 9 would be otiose. 11. It is also clear from the aforesaid provisions that they are intended to put a check on the indiscriminate decision of the Market Committee while removing one employee or the officer of the RMC because after engagement or appointment of the officers or the employees the Market Committee is supposed to follow the principles of natural justice and other necessary procedure as enshrined under law before dismissing or removing the superior officer for which before removal or dismissal of any superior officer, the previous approval of the Board is mandatory. But the order of dismissal or removal would only be passed by the Market Committee. 12. It is reported in 1997 (I) OLR 497; Govinda Chandra Panda v. State of Orissa and others para-10 of which is quoted below:- “10. In regard to the challenge to the Board’s power of approval under amended Rule 33 of the Rules, it may be stated that no doubt Sec.9 of the Act does not spell out any such approval by either the Director or the Board. The provisions of the Section show that Market Committee is alone competent to appoint its own officers and servants. But Clause (i) of Sec. 18-B (1) of the Act prescribes that, subject to the provisions of this Act the Board shall exercise the powers of superintendence and control over the working and other affairs of the Market Committees so on and so forth. But Clause (i) of Sec. 18-B (1) of the Act prescribes that, subject to the provisions of this Act the Board shall exercise the powers of superintendence and control over the working and other affairs of the Market Committees so on and so forth. (Emphasis supplied) Therefore, vesting power of approval is not against the spirit of the main Section of the Act and we make it clear that such power of approval with the Board is not meant to be exercised to create any huddle or impediment in the working of the Market Committee or with appointment of its officers and servants; and needless to point out that the Board under the amended rules will be competent to point out any illegality or irregularity in the matter of appointment or punishment pursuant to any disciplinary proceeding. The provision is not unreasonable nor is in conflict with the spirit of the Act, but rather is aimed at achieving an effective control over the management of the Committee”. 13. With due regard to the aforesaid decision, it is clear that the role of the Board has been defined and categorically Their Lordships have clarified that the power of approval with the Board is not meant to create any huddle or impediment with the Market Committee for the appointment of officers and servants to manage the market. Keeping in view of the aforesaid legal provisions and the ratio of aforesaid decision, the facts of this case shall be discussed. 14. In the writ petition there is nothing mentioned as to why 35 DLRs including the petitioners were appointed as DLRs but Annexure-5 shows that these petitioners have received their remuneration as daily wager from 2010 not continuously. Thus, the petitioners have not been able to prove that they were engaged as DLRs for five years by the time of filing the writ petition. 15. In the writ petition at para-9 (A) the petitioners have challenged Annexure-7 stating that on 27.11.2011 the Chairman cancelled the appointment of 35 outsiders engaged on daily wages but in the prayer portion he has prayed to quash said Annexure-7 issued on 27.1.2011. In fact Annexure-7 shows that the said document is issued on 27.1.2011 but not on 27.11.2011. 15. In the writ petition at para-9 (A) the petitioners have challenged Annexure-7 stating that on 27.11.2011 the Chairman cancelled the appointment of 35 outsiders engaged on daily wages but in the prayer portion he has prayed to quash said Annexure-7 issued on 27.1.2011. In fact Annexure-7 shows that the said document is issued on 27.1.2011 but not on 27.11.2011. Such document clearly shows that the Chairman of the RMC, Jajpur cancelled the engagement of 35 daily wagers vide letter No.224 dated 24.1.2011 as same has not been approved by the Board. Such document is also relied upon by the opposite parties in their counter. Thus, this Court is of the considered view that on 27.1.2011 the engagements of the petitioners as daily wagers have been cancelled. 16. It is the contention of the learned counsel for the petitioners that as per the letter of the Board the engagement of the petitioners have been made by the RMC, Jajpur. Such letter is also admitted by the opposite parties vide Annexure-B/4. The said letter is placed below: “OFFICE OF THE ORISSA STATE AGRICULTURAL MARKETING BOARD: BHUBANESWAR No.2039 (57)/Dtd. 17.12.99 To The Chair Persons, All R.M.Cs. in the State Sub:- Appointment and appointment on promotion of staff in R.M.C. Ref:- This Board Office letter No.1208 Dtd. 13.8.93 and letter No.905(57) Dtd.28.6.99. Sir, With reference to above, I am to say that in spite of instructions and guidelines issued by the Board in the referred letters, there are instances that the R.M.Cs. are making appointments and appointing on promotions also in different posts without taking prior approval of Orissa State Agricultural Marketing Board. The proceedings of the sub-committee formed at the level of R.M.C. pursuant to the Board Letter No – 1208 dtd. 13-8-1993 along with proposal of R.M.C would have been sent to the Board for considering approval and then only after receipt of approval of Board the R.M.C. was to issue appointment orders accordingly. Therefore proposals relating to appointments already made in violation of provisions and instructions shall be sent to the Board, after cancelling such appointments and reverting the staff appointed on promotion to their earlier posts, for approval at Board level. Further in future no appointments shall be made without obtaining prior approval of Board. After following this due procedure, the proposals may please be sent to the Board by 25.12.99 for consideration at its level. Further in future no appointments shall be made without obtaining prior approval of Board. After following this due procedure, the proposals may please be sent to the Board by 25.12.99 for consideration at its level. This may please be acknowledged. Yours faithfully, Sd/- Member Secretary, O.S.A.M. Board, Bhubaneswar” After going through the above letter it can be only opined that the Board has cautioned the RMCs towards illegal and irregular appointment of the staff of the Market Committee and also has advised to cancel such illegal appointment and revert the staff who were appointed on promotion to earlier post. The letter is nothing but a guideline issued by the Board. The letter has been issued purportedly on interpretation of Section 18-B of the Act as per decision stated above. But this Annexure-B/4 does not appear to have been issued directing the Secretary of the RMC, Jajpur to engage the petitioners as DLRs. So, Annexure-B/4 does not extend any benefit to the petitioners. Rather, their engagement as DLRs is not well proved by the petitioners. 17. The petitioners relied on the resolution of the general meeting of the Management of Opposite Party No.4 vide Annexure-2. On going through the same it appears that out of 35 DLRs engaged the petitioners along with 10 others have been appointed on contractual basis as employees of the Market Committee vide resolution dated 8.3.2011. In the same resolution it has been clearly mentioned that this appointment should be made subject to approval of the Board. When the petitioners as DLRs have not been approved by the Board vide Annexure-7 which is under challenge and the petitioners have not brought to the notice of the Court that such resolution has been approved by the Board, it cannot be said that the engagement of the petitioners is valid and legal. 18. The resolution does not disclose prior approval of the Board has been obtained to appoint the petitioners on contractual basis as employees of the Market Committee. In view of foregoing discussion, the prior approval is necessary for the appointment to be made but such approval need not be post facto approval. There is nothing brought out by the petitioners to show that the Annexure-7 is illegal and improper. In view of foregoing discussion, the prior approval is necessary for the appointment to be made but such approval need not be post facto approval. There is nothing brought out by the petitioners to show that the Annexure-7 is illegal and improper. It is the contention of the learned counsel for the petitioners that they should be allowed to be appointed on contractual basis because they were DLRs and their engagement have been duly approved by the Board. When their appointments as DLRs is illegal and their engagement as DLRs has been cancelled on 27.1.2011 being not approved, the subsequent engagement of petitioners on contractual basis as employee of the Market Committee on 8.3.2011 vide Annexure-2 is also illegal. Point No.(i) is answered accordingly. POINT NO.(ii) 19. The petitioners have sought for relief to declare Annexure-7 as illegal and arbitrary and, consequently to direct the opposite parties to allow petitioners to continue in the post they were engaged on contractual basis. In the aforesaid paras it has been already observed that their appointments are not legal and proper. No document has been filed by the petitioners to show that in pursuance of Annexure-2 they have joined as Market Guard/Junior Clerk or Market Supervisor in the market. The petitioners only produced the receipts showing security deposit of Rs.2,000/- each, but same is disputed by the opposite parties in their counter. When the petitioners have been issued with the appointment orders on 16.3.2011 without the prior approval of the Board and their initial appointment has been also cancelled, it cannot be said that they continued in the job they claim. Moreover, there is no any other material produced by the opposite parties to prove the Annexure-7 as illegal and improper. Thus, the petitioners are not entitled to any relief. Point No.(ii) is answered accordingly. CONCLUSION 20. From the foregoing discussions, it is clear that the engagement of the petitioners as DLRs is illegal and subsequent engagement on contractual basis is also not legal being de hors to the provisions of the Act and the Rules made thereunder. Also it has been observed that the petitioners are not entitled to any relief as prayed for. Consequently the writ petition being devoid of merit stands dismissed. Petition dismissed.