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2016 DIGILAW 182 (ORI)

Jadunath Panda v. Jogendra Debata

2016-03-03

D.DASH

body2016
JUDGMENT This appeal has been filed challenging the judgment in Title Appeal No. 27 of 1999 passed by the learned Addl. Dist Judge, Jajpur in which the final decree passed by the learned Civil Judge (Sr. Division), Jajpur in Title Suit no. 29 of 1981 which has been confirmed. The appellant herein before this Court is the defendant no. 14 in the trial Court and was the appellant before lower appellate Court. He had not contested the suit and as such, the suit was decided against him ex parte followed by preliminary decree for partition. The suit having been preliminarily decreed for partition of the suit properties by judgment dated 12.01.1989, final decree proceeding commenced on 16.01.1995 at the instance of the plaintiff. The Civil Court Commissioner was deputed to effect the partition in conformity with and as ordained in the preliminary decree. Report along with the map showing the allotment of the properties in accordance with the preliminary decree was submitted before the Court on 23.03.1999 and that was finally accepted and final decree was passed. It is contended by the appellant that he is a party to the said partition suit being a purchaser in respect of Ac. 0.02.5 and ½ links of land out of Ac. 0.04 decimals under plot NO. 783 and that the Civil Court Commissioner deputed to divide the lands amongst the co-sharers and the report showing the position of land under plot no. 749/948 is actually the position of his land under plot no. 753 and that has been thus wrongly divided. This was resisted by the plaintiff that the report of the Civil Court Commissioner allotting the properties to the parties are in conformity with the settlement map and the objection is misconceived. 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 lower appellate Court on this objection came to conclude that this appellant had never filed any objection to the report of the Commissioner of the Court below and he has also not shown that the report of the Commissioner contains any such irregularity or infirmity. So the appeal has been held to be without any merit. It has also been held to the time barred. So the appeal has been held to be without any merit. It has also been held to the time barred. 4.The appeal has been admitted on the following substantial questions of law:- (1) Whether the first appellate Court was right in law in rejecting the application under Section 5 of the Limitation Act filed along with the appeal before the first appellate Court? (2)Whether the first appellate Court was right in law in rejecting the condonation of the appellant that his plot no. 753 not having been subject matter of the suit could not at all be included in the final decree on the basis of Civil Court Commissioner’s report along with the map in the final decree proceedings? 5.Heard the learned counsel for the parties and perused the impugned judgment of the lower appellate Court as also entire order-sheet of the trial Court. The judgment in the T.S. No. 29 of 1981 was delivered on 12.01.1989 and it was ex parte against this defendant no. 14 who is the present appellant before this Court as well as the appellant before the lower appellate Court. The preliminary decree was sealed and singed on 31.01.1989. On 16.01.1995, the plaintiff-respondent no. 1 filed a petition to make the preliminary decree final. The defendants including the present appellant who was defendant no. 14 were noticed to show cause and those were personally served. As it reveals from the order dated 29.06.1996, this defendant also did not appear there in the final decree proceeding and thus maintained complete silence. Report of the Civil Court Commissioner being received on 02.02.1999, further opportunity was given to the parties to file their objections if any and finally it was accepted by order dated 23.03.1999 and the final decree was passed with the report of the Commissioner etc being made part of it. The final decree was drawn up and notified on 21.06.1999 and thereafter on 24.06.1999, it was sealed and signed. This appellant filed the appeal on 03.08.1999. The final decree was drawn up and notified on 21.06.1999 and thereafter on 24.06.1999, it was sealed and signed. This appellant filed the appeal on 03.08.1999. 6.Learned counsel for the respondent at the outset fairly concedes that the view taken by the lower appellate Court as regards the sufficient cause for condonation of delay and the order of refusal to condone the same is the outcome of pedantic approach and the delay being not for a considerable period, the lower appellate Court ought not to have gone to refuse the prayer for condonation of delay going to have a justice oriented approach. In view of above, the first substantial question of law is answered in favour of the appellant. 7.Now coming to the second substantial question of law, it is seen that the specific objection of the appellant is that his purchased land under plot no. 753 is not the subject matter of the suit. However, it is alleged that the Commissioner has divided the land under contiguous plot no. 749/948 into two parts and this plot no. 749/948 lies to the Northern side of plot no. 749/947 which is said to be not the position of plot no. 749/948 to the North of plot no. 749/947. Thus, he urges that the Commissioner has not studied the settlement map properly and the position of land under plot no. 749/948 as shown in the Commissioner’s map is the land under plot no. 753 belonging to the appellant. Thus, the specific objection is that the land under plot no. 753 has in fact been divided assigning its number as plot no. 749/948. Except the bald averments on that score in the memorandum of appeal, no such material has been placed in support of the same, to satisfy the Court that his purchased land under plot no. 753 has actually been allotted to the plaintiff misrepresenting it as plot no. 749/948. It may not be correct in law to say that a party who has not filed any objection to the report of the Commissioner when detects any such glaring mistake in the report which is apparently not seen but only gets known on microscopic examination through expert, or at any other stage in the field is precluded from questioning it by carrying an appeal. But when the curtain has finally been drawn by passing of final decree, such objection would stand for consideration on mere asking without being substantiated by strong materials to support. Therefore, in the absence of any such material to provide any support for the objection to stand for consideration, the lower appellate Court having found the report of Commissioner to be free from any irregularity and infirmity, has rightly refused to interfere with the final decree and thus the dismissal of the appeal filed by the present appellant is not liable to be interfered with. 8.Resultantly, the appeal stands dismissed and in the facts and circumstances no order as to cost is passed. Appeal dismissed.