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2016 DIGILAW 893 (ORI)

Hagru Sethi v. Tikelal Sahu

2016-10-04

D.DASH

body2016
JUDGMENT : This appeal has been filed against the judgment and decree passed by the learned Additional District and Sessions Judge, Nuapada in R.F.A. No. 05 of 2005 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Nuapada in T.S. No. 48 of 2000. 2. The appellant as the plaintiff having filed the suit for declaration of his right, title and interest and confirmation of possession over the suit land with further relief of permanent injunction arraigning the respondents as the defendants, the suit stood dismissed on 20.11.2004. Being aggrieved by the said dismissal of the suit, the appellant as the unsuccessful plaintiff carried the first appeal under section 96 of the Code of Civil Procedure. The lower appellate court having gone for elaborate discussion of evidence both oral and documentary has finally affirmed the findings of the trial court that Chaitram Sethi had not adopted the plaintiff as his son as also that there has been failure on the part of the plaintiff to establish his status as claimed to be the adopted son of Chaitram. Thus the foundation of the claim of the plaintiff having found to have not been established, the suit at his instance for the reliefs as prayed for met with dismissal. 3. Heard the learned counsel for the appellant. As stated in the memorandum of appeal in ground no.5 at page 7, he places the said ground as the substantial question of law arising in this appeal for its certification for the purpose of admitting this second appeal of the year 2007. 4. The substantial question of law as stated therein which is pressed for acceptance reads as under:-“Whether the learned lower appellate court was correct/right in entertaining the appeal i.e. R.F.A. No.05 of 2005, when admittedly on the face of it, the suit being valued at Rs.2,00,000/-the learned lower appellate court lacks pecuniary jurisdiction in entertaining the same and on the ground alone lthe judgment and decree dated 21.11.2006 and 24.11.2006 passed by the learned Additional District and Sessions Judge, Nuapada is liable to be set aside”. 4. 4. Learned counsel for the respondents entering the appearance submits that even if this Court accepts the submissions of the learned counsel for the appellant and goes to answer in favour of the appellant, that would lead the appellant nowhere and therefore, it would serve no purpose whatsoever by admitting this appeal since the appellant’s status as unsuccessful plaintiff would still remain and he cannot be granted with any relief that he had prayed for. 5. Instead of addressing the above, taking a pause for the moment, let us first see the consequence that would fall eventually even after the answer of above substantial question of law is wholly recorded in favour of the appellant. The answer if is given in the affirmative it would be that the judgment and decree passed by the lower appellate court would stand set aside as to have been rendered without having the jurisdiction as it has the beyond pecuniary limit of the Additional District Judge as provided in Orissa Civil Courts Act in so far as the appeals under section 96 of the Code of Civil Procedure are concerned. But what would happen then in so far as the appellant-plaintiff is concerned whose suit has been dismissed. It is he who had carried the first appeal. Now the judgment and decree of the first appellate court even if are said to be nullities as to have been passed without taking the jurisdiction, the judgment and decree passed by the trial court still would firmly stand and had those been in favour of the appellant, the matter would have been different and the appellant thereby would have gone to have been placed in the position as the successful suitor and thus the decree holder. The judgment and decree of the lower appellate court although get buried for the above reason, the judgment and decree passed by the trial court running against the appellant-plaintiff stare at him with all the findings also operating and binding against him as those have by now reached their finality in view of lapse of about eleven and half years going for accrual of the right in favour of the respondent. 6. 6. In view of all these, this Court finds that absolutely no useful purpose would be served by admitting this second appeal after more than nine years on the above substantial question of law which would serve no useful purpose whatsoever and this Court would neither be in a position to examine the sustainability of the findings of the trial court in this second appeal as the first appellate court. Since, those have already attained their finality; there also remains no scope now after lapse of more than eleven and half years to be tinkered with in any manner. 7. The appeal is accordingly dismissed. No order as to cost.