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2017 DIGILAW 115 (ORI)

Biraja Prasad Basu v. Gopal Chandra Banarjee

2017-01-25

D.DASH

body2017
JUDGMENT By filing this petition under Article 227 of the Constitution, the appellants in RFA No. 48 of 2007 who are the unsuccessful plaintiffs of T.S. No. 247 of 2001 in the Court of learned Civil Judge (Sr. Divn.), Jajpur pending in the Court of learned Ad hoc Addl. District Judge (Fast Track), Jajpur have called in question the order dated 7.3.2011 passed in the said appeal rejecting their petition to stay further proceeding of the appeal till disposal of OEA Lease Appeal No. 2 of 2007. For the purpose they had sought for the aid of the provision of Section 10 of the Code of Civil Procedure, in the alternative the provision of Section 151 of the Code. 2. Facts for the purpose may be briefly stated as under : The petitioners as the plaintiffs have filed the suit for declaration of their right, title and interest along with those of their co-owners and opp.party nos. 5 to 18 (defendant nos. 5 to 18) over the suit land and for confirmation of their possession. They have also prayed for further declaration that the settlement entry in the corresponding M.S. ROR standing in favour of defendant nos. 1 and 2 be declared as void and so also the order passed in OEA Lease Case No. 8261 of 1965-66. It is stated that the property in question was that of the intermediaries namely, Adhar Chandra Banarjee and Sridhar Banarjee representing their nominal Thakur Sri Joginnath Jew and Sri Gopinath Jew. It is further stated that note of possession was there in favour of one Govinda Prasad Bose who is the predecessor- in –interest of the petitioners and opp.party nos. 5 to 18 in the C.S. record of the year 1928-29. It is next stated that he had approached those landlords for lease of the land for agriculture and horticulture purpose and the ex-landlords created tenancy by accepting the rent and by way of attornment of their previous possession. So Govinda Prasad Bose having come into the possession as settled raiyat, it is said that he had acquired right of occupancy raiyat over the same and as such remained all along in possession till his death whereafter his successors including these petitioners, opp.party nos. 5 to 18 are in such occupation. So Govinda Prasad Bose having come into the possession as settled raiyat, it is said that he had acquired right of occupancy raiyat over the same and as such remained all along in possession till his death whereafter his successors including these petitioners, opp.party nos. 5 to 18 are in such occupation. It is further stated that the possession of the land having remained with them continuously for all these periods which has although been peaceful, without any interruption and as of its owner, there has also been acquisition of title by adverse possession. The Petitioners assert that the order passed in OEA Lease Case No. 8261 of 1965-66 does not bind them and others and the occupancy right over the property which they have acquired by virtue of the provision of Sections 23 and 24 of Orissa Tenancy Act is not taken away by the said order. The opp.party nos. 1 to 4 who are the contesting defendants deny the claim of the petitioners. They state that the petitioners have never remained in possession and have not acquired the right, title and interest over the property either by adverse possession nor they have acquired occupancy right by virtue of the provision of Orissa Tenancy Act. The trial Court dismissed the suit by finally answering the contentious issues particularly holding that the petitioners and others (opp.party nos. 5 to 18) have no right, title and interest over the suit land. In deciding the said issue, the order passed in OEA Lease Case has been accepted as legal and valid. Thus the trial Court within its competency, jurisdiction and power as that of the civil Court has refused to interfere with the same. 3. The unsuccessful plaintiffs as the appellants had filed the suit in the year 2001 which stood dismissed by judgment dated 7.7.2007 followed by the decree. After disposal of the suit in that year this OEA Appeal has been filed challenging the vesting and consequential order standing in favour of the Opp.party nos. 1 to 4. Thereafter, it having been projected in the first appeal filed by the petitioners under Section 96 of the Code as the ground to stay of further proceeding of the said first appeal till disposal of the OEA Appeal, the lower appellate Court has turned down the prayer. 4. Heard learned counsel for the petitioners and learned counsel for the opp.parties. Thereafter, it having been projected in the first appeal filed by the petitioners under Section 96 of the Code as the ground to stay of further proceeding of the said first appeal till disposal of the OEA Appeal, the lower appellate Court has turned down the prayer. 4. Heard learned counsel for the petitioners and learned counsel for the opp.parties. I have carefully gone through the order which is the subject matter of the present proceeding. 5. Learned counsel for the petitioners submits that as on date, the said OEA Appeal is pending and that according to him would decide the fate of the claim of the petitioners in respect of the suit land as they claim to have acquired the occupancy right over the same by virtue of their long standing possession since the time of ex landlords with their consent. According to him, since it is asserted that the order in a OEA case has clothed the opp.party nos. 1 to 4 with right, title and interest in so far as the suit land is concerned, thus when that order is under challenge having been passed behind the back of the petitioners who are in possession of land in question, the lower appellate Court has erred in law by not staying the proceeding of the appeal till disposal of that OEA Appeal in exercise of inherent power under Section 151 of the Code. 6. Learned counsel for the opp.party nos. 1 to 4 vehemently refutes the submission. According to him, the move itself is mischievous that when the suit remained pending six years in the trial Court, the petitioners only after becoming unsuccessful in the suit have taken chance by filing the OEA appeal and this is only for the purpose of protracting the litigation when the case that they have set out per se is not acceptable and has been discarded by the trial Court on appreciation of evidence let in by the parties. It is his further submission that when even for more than five years the first appeal has remained stayed by order of this Court, the petitioners have taken no such step for disposal of the OEA Appeal, for which it has remained pending as is now submitted. It is his further submission that when even for more than five years the first appeal has remained stayed by order of this Court, the petitioners have taken no such step for disposal of the OEA Appeal, for which it has remained pending as is now submitted. He contends that if ultimately in the said OEA appeal, the petitioners became successful, they would not stand deprived forever and can well get the fruit of the said order as per law. 7. The petitioners while filing the suit were well aware of the order passed in the OEA lease case and their very case is that the same is not binding on them. They have taken the chance of questioning that order in the suit itself within the limited powers of the civil Court which has been decided by the trial Court against them and that is laced for legal scrutiny of the lower appellate Court. so now after being unsuccessful in the suit by filing an appeal, the very move to stay the first appeal on its face appears to be unclean and it’s the purpose being for protracting the litigation is not ruled out. Moreover, when they question the vesting of the land with the State and consequential order in favour of opp.party nos. 1 to 4, the trial Court has answered the question regarding their possession and that now stands to be judged again in the first appeal through the legal spectrum. The claim of the petitioners with regard to acquisition of title by adverse possession having been answered against them, that is also again before the lower appellate Court for decision by reappraisal of evidence in the touchstone of the settled position of law. In view of the aforesaid, this Court does not find that by such order passed by the first appellate Court, refusing to stay the first appeal till disposal of the OEA Appeal filed by the petitioners, there has occasioned failure of justice or the same has led to miscarriage of justice warranting interference in exercise of power under Article 227 of the Constitution. 8. The writ petition is accordingly dismissed. No order as to cost. 8. The writ petition is accordingly dismissed. No order as to cost. Viewing the age of the appeal, this Court directs the lower appellate Court to make all endeavour for expeditious disposal of the appeal preferably within four months from 23.02.2017 on which date the parties are directed to appear before the lower appellate Court to receive further instruction. Petition dismissed.