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2018 DIGILAW 757 (ORI)

Yasodhara Das v. Binapani Dwibedi

2018-08-24

D.DASH

body2018
JUDGMENT The unsuccessful defendant No.1 of the suit i.e. T.S. No.20/418 of 2008/2009 as the appellant has filed the appeal under Section 96 of the Code of Civil Procedure (for short,, hereinafter called as ‘the Code’). The challenge in this appeal is to the judgment dated 24.09.2009 followed by the decree passed by the learned Adhoc Additional District Judge (F.T.C.-3), Bhubaneswar in the above noted suit. 2. The suit has been filed by the respondent as the plaintiff against the appellant arraigning him as defendant no.1 and the defendant no.2 to 5 as the proforma defendants. The suit has been decreed declaring the right, title and interest of the respondent no.1 (plaintiff) and those of respondent no. 2 to 5 (defendant nos. 2 to 5) over the suit land and their possession has been confirmed. Accordingly, this appellant (defendant No.1) has been permanently injuncted from disturbing the possession of the respondent No.1 (plaintiff) and respondent nos. 2 to 5 (defendant nos. 2 to 5) over the suit land. 3. 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. 4. Plaintiff’s case is that, her husband namely, Bishnu Kumar Dwivedi had purchased a piece of land measuring Ac.0.130 decimals under plot No.1372 from Khata No.179 as described in the plaint schedule by a registered sale-deed dated 18.05.1974. It is pertinent, at this stage to mention that the defendant No. 2 to 5 are the daughters and defendant No.5 is the son of the plaintiff. They are the legal heirs and successors of said Bishnu Kumar Dwivedi. The plaintiff claims to have constructed an asbestos roofed house consisting of two rooms over the suit and also to have dug a well over a portion of it. It is stated that on the death of Bishnu Kumar Dwibedi, the plaintiff and defendant no. 2 to 5 have equal right over the property, left intestate by said Bishnu Kumar Dwibedi. The plaintiff has stated that as she has been residing at Cuttack, one Sridhar Kumar Sahu had been inducted as a monthly tenant in the said house and premises situated at Bhubaneswar. The plaintiff claims to be in possession of the property constructing boundary wall all around. In the hal settlement, when the plaintiff together with defendant nos. The plaintiff has stated that as she has been residing at Cuttack, one Sridhar Kumar Sahu had been inducted as a monthly tenant in the said house and premises situated at Bhubaneswar. The plaintiff claims to be in possession of the property constructing boundary wall all around. In the hal settlement, when the plaintiff together with defendant nos. 2 to 5 have applied for recording the said land in their favour, which is sometime, in the year 1987, an Amin had been to ascertain the possession of the plaintiff. But at that stage, the application was resisted by one Godabari Das, who happens to be the mother of the defendant No.1 and she claimed her right over the property as its owner, asserting possession. Alternatively, it is stated that, in case, the sale-deed in favour of the Bishnu Kumar Dwibedi is not found to be valid, then also by virtue of open, peaceful, long and continuous possession of the suit property without any obstruction from any quarter, that too exercising all the rights of ownership, hostile to the true owner and to his knowledge, they have perfected title by virtue of the adverse possession. It is stated that Amin during the settlement operation had found the possession of the plaintiff over the suit land which had also been verified by the Asst. Settlement Officer and he had recommended for recording the suit land in favour of the plaintiff. Godabari, in her objection before the settlement authority stated that she had filed an application under Order 21 Rule 99 of the Code numbered as Misc. Case No.96 of 1987 in the court of the Sub-Judge, Bhubaneswar in respect of the suit land which was there the subject matter in dispute. The settlement record being kept as it was, is under challenge in Settlement Revenue Case No. 2001 of 1989 which is subjudice before the Commissioner, Settlement. On verification of record, the plaintiff has come to know that Bishnu Ch. Mohanty and Basanta Kumari Mohanty who are the son and daughter of Kunja Bihari Mohanty who is the vendor of plaintiff’s-husband, had filed O.S. No.39 of 1977 (I) for partition impleading Ghana Behera and Laxmikanta Moharana as the defendants and that has been preliminarily decreed on 14.04.1980 followed by final decree passed on 21.02.1984 based upon the report of the Commissioner dated 20.07.1983. It has been shown in the final decree that the suit land measuring Ac.0.130 decimals was sold by Kunja Bihari, in favour of the husband of the plaintiff. In the said suit, the right, title, interest and possession of the plaintiff’s-husband over the suit land has been accepted. The plaintiff while in possession of the suit land after death of her husband had let-out a portion of the same to a tenant namely, Dhruba Sahu. On 09.04.2001, the plaintiff was informed that some persons had come and threatened the tenant with dire consequences unless he would vacate the house in question. So it had been reported to the local police. The tenant was then further harassed by defendant no.1, for which the plaintiff on 11.07.2007 had to return all the advance received. The plaintiff thereafter came to know that in Misc. Case No.96 of 1987, in the matter of an application under Order 21 Rule 99 of the Code, an order having been passed, the defendant no.1 has been projecting the same as her triumph card. It is further stated that the Civil Court Commissioner had reported about the construction of compound wall by the husband of the plaintiff on 20.02.1990. It is next stated that similar order was passed in Misc. Case No.95 of 1997 filed by the Sudha Manjari Das on that very date i.e. 20.02.1990, in respect of her purchased land. The plaintiff’s case is that neither her husband nor she was the party to those proceedings and therefore there was no occasion for them to advance their claim. It is also stated that such orders are not binding on the plaintiff and proforma defendant nos. 2 to 5. It is her case that as Godabari was not in possession of the land purchased by the plaintiff in the year 1974 and as in that proceeding, the land was not the subject matter that has to be taken to be some other land, if at all so purchased by Godabari. On 21.06.2001, there being the disturbance to the peaceful possession of the suit land by the plaintiff by demolition of the boundary wall at the instance of defendant no.1, the suit has been filed. 5. On 21.06.2001, there being the disturbance to the peaceful possession of the suit land by the plaintiff by demolition of the boundary wall at the instance of defendant no.1, the suit has been filed. 5. Defendant no.1 in the written statement while traversing the plaint averments has averred that the land purchased by the husband of the plaintiff on 18.05.1974 has no nexus with the suit land nor any house was constructed thereon by the husband of the plaintiff or by the plaintiff herself. It is asserted that the suit land had been purchased by Godabari, the mother of the defendant no.1 from one Bika Behera by registered sale deed dated 15.04.1958 which stood mutated in his name by other in Mutation Case No.1348 of 1941. Her case is that since purchase, Godabari remained in possession of the same. It is alleged that on 20.02.1987, Godabari, the mother of the defendant no.1 received an information that portion of the boundary wall around the suit had been demolished. So, she immediately field an application under Order 21 Rule 99 of the Code in the proceeding which had arisen out of C.S. No.32 of 1977. In that proceeding, the right, title, interest and possession of the mother of the plaintiff has been declared and it has been especially held that Ghana Behera, Laxmikanta Moharana and Mohesh Prasad Das had filed the suit behind the back of Godabari. Under the circumstances, it is stated that the allotment of the suit land in favour of Bishnu Kumar Dwibedi, the husband of the plaintiff by virtue of purchase as is claimed to have been purchased from Kunja Bihar Mohanty, the father of the plaintiff of that suit is nonest and not to be honoured at all. It has been further stated that the possession of the mother of the defendant no.1 over the suit land has been established there in the said proceeding. It is of course stated that there was never any threat to the plaintiff from her side as alleged and in fact, there was no occasion for them to do so as the plaintiff was not in possession of the land. Counter allegation has been made that the plaintiff using her muscle and money power has demolished a portion of the boundary wall around the suit land which has been constructed by Godabari putting an iron gate at the entrance. Counter allegation has been made that the plaintiff using her muscle and money power has demolished a portion of the boundary wall around the suit land which has been constructed by Godabari putting an iron gate at the entrance. The said action is stated to have been reported to the police on 17.04.2001. In view of the order passed in Misc. Case No.96 of 1997 declaring Godabari’s title and possession over the suit land when Godabari was not a party to the C.S. No.32 of 1977 and in the Execution Case No.18 of 1985; it is stated that the present suit has been filed only to harass the defendant no.1 and in order to grab her property. It is further stated that there is absolutely no such land as having been assigned as plot No.1372 of an area of Ac.0.0130 decimals. The sale deed of the year 1974, standing in the name of the husband of the plaintiff is attacked as invalid and inoperative. Further, it is stated that during the settlement operation of the year 1962, Godabari the mother of the defendant no.1 was there in the village for which she had not been able to take proper steps for recording of the suit land. Be that as it may, it is claimed that the possession of the suit land has all along rested with Godabari and after her, upon the defendant no.1. With all these, the defendant no.1 prays for dismissal of the suit. 6. The trial court on the above rival pleadings, has framed following issues :- 1. Is the suit maintainable ? 2. Is there any cause of action for the suit ? 3. Is the suit barred by limitation ? 4. Is the suit bad for non-joinder of necessary party ? 5. Has the plaintiff right, title, interest and possession over the suit land ? 6. To what other relief, the plaintiff is entitled ? 7. On going through the above framed issues, the issue No.5 is bound to be the crucial one, since it’s answer in either way would decide the fate of the suit. 8. 5. Has the plaintiff right, title, interest and possession over the suit land ? 6. To what other relief, the plaintiff is entitled ? 7. On going through the above framed issues, the issue No.5 is bound to be the crucial one, since it’s answer in either way would decide the fate of the suit. 8. Learned Counsel for the appellant submitted that in this case, the plaintiff’s claim is on the basis of the purchase of the land in question by her husband from Kunja Bihar Mohanty by registered sale deed dated 10.05.1974 and the subsequent developments taken in that direction while passing the preliminary decree and final decree, in C.S. No.32 of 1977 i.e. Ext. 9 and Ext. 10 where Godabari was not a party. He further submitted that the claim of the defendant no.1 is based on the purchase of the suit land first by Bika from the recorded owner Satyabadi, who had got it on amicable division which has been reflected in the record of right under Ext. G and H. The transaction was under registered sale deed dated 30.09.1940 under Ext. 7, the subsequent purchase of the same by Godabari, the mother of the defendant No.1 by registered sale deed under Ext. K and the final order holding right, title and interest of the Godabari in so far as the suit land is concerned in a proceeding under Order 21 Rule 99 of the Code in Misc. Case No.96 of 1987. This is said to have been duly honoured and accepted by the Commissioner of Settlement in Revision Case No.2001 of 1989 under Ext. C. He, therefore, submitted that when the settled position of law is that in a proceeding under Order 21 Rule 99 of the Code, the executing court has the jurisdiction and power to decide the right, title and interest of the objector-claimant and accordingly to confirm the possession; or to restore the possession, as the case may be and that order amounts to decree which has to be accordingly given due regard to and no suit with such relief/s is maintainable being barred by law in very clear terms, the trial court has erred in law by ignoring the same. He further submitted that the contention of the plaintiff that such order passed in the proceeding under Order 21 Rule 99 of the Code is not binding on her and others as they were not parties to the said proceeding is misconceived as the persons through whom the plaintiff claims to have derived the right, title and interest were very much the parties. He further submitted that when the plaintiff has stepped out to take full advantage of the finding recorded in C.S. No.32 of 1977 in asserting that her husband’s purchase has been saved, although her husband was not a party to that suit when the legal representatives of said vendor of the husband of the plaintiff were all there; now it is not permissible for the plaintiff to wriggle out of the order passed in a proceeding under Order 21 Rule 99 of the Code on the ground that the plaintiff’s husband or the plaintiff were not the parties thereto. He submitted that the plaintiff is stopped from raising that issue. According to him, since the claim of right, title, interest and possession of the Godabari over the suit land vis-a-vis the counter claim of the legal heirs of the vendor of the plaintiff’s husband have already been so held in that proceeding under Order 21 Rule 99 of the Code, the plaintiff cannot get the claim of her right, title and interest over the suit and as such the right of possess the same, further adjudicated by filing the suit afresh which is barred in law. He also submitted that the prayer of plaintiff being for declaration of her title over the suit land without the prayer for declaration that the order dated 20.02.1990 passed in the proceeding under Order 21 Rule 99 of the Code; the registered sale deed dated 15.04. 1958 and the final settlement patta published on 25.10.1988 as nonest in the eye of law, the suit as laid is for the reliefs claimed not maintainable and the trial court ought not to have decreed the suit. According to him, the present suit with the relief claimed is clearly barred by law. 1958 and the final settlement patta published on 25.10.1988 as nonest in the eye of law, the suit as laid is for the reliefs claimed not maintainable and the trial court ought not to have decreed the suit. According to him, the present suit with the relief claimed is clearly barred by law. He next submitted that the plaintiff’s claim of acquisition of right, title and interest over the suit land by remaining in open, peaceful and continuous possession with hostile animus, denying the title of the true owner and exercising all such rights as owner has not been established by leading clear, cogent and acceptable evidence. According to him, the trial court’s finding on issue no.5 is not based on proper appreciation of evidence in the backdrop of the settled position of law holding the field. Therefore, he urged to set aside the judgment and decree passed in the suit. 9. Learned Counsel for the respondent No.1 submitted all in favour of the finding recorded by the trial court on issue no.5. He submitted that the evidence on record clearly goes to show that the land purchased by Bishnu Kumar Dwibedi from his vendor is distinct and separate from that of the land purchased by Bika which in fact even differ in location. He further submitted that for the said reason, ultimately in the final decree proceeding of C.S. No.32 of 1977, the purchased land of the husband of the plaintiff has been excluded from the purview of the actual division by allotting in the share of Kunja Bihari and when this order on the application filed by Godabari under Order 21 Rule 99 of the Code has been passed behind the back of the plaintiff, the same is neither binding on the plaintiff nor does it in any way affect the right, title and interest of the plaintiff and her possession. In so far as the suit land is concerned, it was contended that proceeding which had been initiated under Order 21 Rule 99 of the Code was not maintainable as there was no such execution proceeding in respect of the land in question so as to form the subject matter of said application under Order 21 Rule 99 of the Code. He further submitted that when in that proceeding neither the husband of the plaintiff nor the plaintiff have been made parties; it clearly shows that Godabari, the mother of defendant no.1 had full knowledge that the purchased property Bishnu Kumar Dwibedi, the husband of the plaintiff was not going to be touched in any way. It was submitted that the trial court has made a thread bare analysis of evidence on record, both oral and documentary in arriving at a conclusion in favour of the plaintiff finding her to be having the right, title, interest and possession over the suit land. Therefore, he urged that the appeal being is devoid of merit. 10. The finding recorded by the trial court on issue no.5 is seen to be the only one under challenge in this appeal. Therefore, this Court is now called upon to judge the sustainability of the same by addressing the rival submission as well as on going through the evidence, keeping in view the position of law holding the field. The trial court has found that the right, title, interest and possession in respect of the suit land rests upon the plaintiff together with the defendant no. 2 to 5 who are the legal heirs/successors of Bishnu Kumar Dwibedi. Taking the risk of repetition, it is stated that when the plaintiff’s claim is based on purchase of the suit land by her husband from Kunja Bihari Mohanty by registered sale deed dated 10.05.1974 and other subsequent developments in the light of the same; the defendant no.1’s claim is based on the purchase of the land by her mother Godabari from the person who had purchased it from the original owner and the subsequent developments in support of the same through the declaration of her right, title, interest and possession on the basis of the said purchases allowing the claim of Godabari, the mother of the defendant no.1 in a proceeding under Order 21 Rule 99 of the Code as recorded in Misc. Case No.96 of 1987 receiving further recognition and acceptance by the settlement authority finally by order in settlement Revision No.2001 of 1989 (Ext. 6). 11. Case No.96 of 1987 receiving further recognition and acceptance by the settlement authority finally by order in settlement Revision No.2001 of 1989 (Ext. 6). 11. In order to address the most important submission of the learned counsel for the learned counsel for the appellant as countered by the learned counsel for the respondent no.1 concerning the impact of the order passed in that proceeding under Order 21 Rule 99 of the Code on the suit as laid, it would be proper to discuss the said provision first. This ORDER-XXI of the Code is as to the execution of the decrees and orders. The relevant rule i.e. Rule 99 has been engrafted for redressal of the grievance of a person being dispossessed by the holder of a decree/order in the course of execution of a decree/order as the case may be, from property under his/her possession on his own right that he/she claims. In that situation, the person concerned being not a party to the suit and execution proceeding has been given the right to make application to the court complaining of such dispossession or as has now been expanded by the judicial pronouncement under the threat of dispossession of his/her property instead of waiting till dispossession. Emphasis being given upon the word “the dispossession of the immovable property”, it is seen that there is no specific reference that it must be only to the property under execution and has been shown therein in terms of the decree/order as the case may be. On a reading of the provision under consideration, there can be no second opinion that said provisions are not meant to protect the right of the third party in respect of his/her property in possession from the hands of unscrupulous decree holder taking advantage of a decree/order in respect of particular land and putting it to execution in order to grab and actually take possession of other property of the third party by manipulation and mischief in course of the execution of the decree/order which is unconnected with that land in question in possession of the third party which does happen in many cases. It is further provided that the court shall adjudicate upon said application by determining all questions (including questions relating to right, title or interest in the property) arising between the parties to that proceeding or their representatives and relevant to the adjudication of the application. A separate suit is strictly barred under the provision. Thus, once a third party does not rise to the occasion in approaching the executing court complaining his/her dispossession from the property under that execution of decree/order, the right to establish is/her right to possess, said property is lost forever once that land is taken into possession by the decree-holder. The executing court before which such questions are raised under the application as above, has been clothed with the jurisdiction to decide all those as if, in a suit. The provisions of law as it stood prior to the coming into force of the Civil Procedure Code Amendment Act No.104 of 1976 with effect from 01.02.1977, envisaged a summary enquiry in such case of complaint of dispossession of immovable property in course of execution of the decree by a third party, given the power to restore the possession of the land in question in favour of said party, if so dispossessed provided the court finds that on the date of institution of the suit, said party was in possession of the said property. The enquiry was thus limited to the factum of possession of the property and the dispossession of said party in course of execution of that decree/order, leaving both sides to get their right, title and interest over that property and the right to possess for being decided in a separate suit, if so field at a later stage within the period prescribed under the Limitation Act for the said purpose in specific. There was thus no legal bar for any subsequent suit by the party aggrieved by the said order in the proceedings. These orders were not deemed as decrees which are now so deemed in view of the provision contained in Rule 103 with the subsequent provision providing the right of appeal or otherwise as if it, a decree. There was thus no legal bar for any subsequent suit by the party aggrieved by the said order in the proceedings. These orders were not deemed as decrees which are now so deemed in view of the provision contained in Rule 103 with the subsequent provision providing the right of appeal or otherwise as if it, a decree. All these provisions have been introduced by Civil Procedure Code Amendment Act, 1976 coming into force with effect from 01.02.1977 are with the purpose of avoiding a fresh second round of suit and all these matters decided in course of that execution proceeding are binding upon the parties further to save time and energy of all concern, as also the harassment for such continuance of the litigation, comparatively for longer period and to save some exercise of the court in duplication, to some extent. 12. Adverting the case at hand, the suit property herein this suit as described in the plaint has been with reference to the land measuring Ac.0.130 decimals in plot no.1372 corresponding to hal plot no.72 measuring Ac.0.130 decimals. It is seen from the petition under Order 21 Rule 99 of the Code filed by Godabari, Ext. 13, that the subject matter there was the land corresponding to plot no.72. Thus, the proceeding under Order 21 Rule 99 of the Code giving rise to Misc. Case No.96/1997 was for the land under hal plot no.72 with little difference in measurement as to be excess by the 0.05 decimals i.e.Ac.0.135 decimals. The order that has been passed in that the said proceeding under Order 21 Rule 99 of the Code runs in favour of the mother of the defendant no.1 namely, Godabari. In fact the opposite parties in that Misc. Case have never specifically asserted the said land to the distinct and separate also being under different locations. Be that as it may, it had however not been so raised there that there is neither any dispossession of Godabari from that land nor there was any apprehension or any threat of dispossession on her part from that land by way of execution of the decree. The Court has held, said Godabari to be having the right, title and interest over that land of Ac.0.135 decimals corresponding current settlement plot no.72 land as entitled to be restored to possession. The Court has held, said Godabari to be having the right, title and interest over that land of Ac.0.135 decimals corresponding current settlement plot no.72 land as entitled to be restored to possession. It has already been said that a person by filing application under Order 21 Rule 99 of the Code may complain of dispossession and seek the protection of the court as to restore the possession by declaring his/her right, title and interest, if so questioned by the holder of the decree and it need not be always necessarily to be only with reference to the land as finds mention in the decree under execution forming the subject matter of the execution proceeding but it may be in relation to some other land wherein the dispossession is made or there remains apprehension/threat of dispossession in the hands by the decree holder in course of execution of decree even without any reference to the land under the decree, so as to serve mischievous purpose and goal. Therefore, admittedly, when the order has been passed in the proceeding under Order 21 Rule 99 of the Code with reference to the land under plot no.72 measuring an area of Ac.0.135 decimals which is the subject matter of the suit being the land measuring Ac.0.130 decimals in favour of the Godabari, the predecessor-in-interest of the defendant no.1 which has attained its finality, despite the challenge to the order in an appeal, there remains no scope at this later stage to say that the land which has been purchased by Bika and the land purchased by Kunja Bihari Mohanty are distinct and separate; so also the land purchased by Bishnu Kumar Dwibedi, the husband of the plaintiff from Kunja Bihari Mohanty as to be having no nexus with the land finally purchased by Godabari which is claimed to have been succeeded by defendant no.1. This has also been accepted by the settlement authority in Settlement Revision Case No.2001 of 1989 in which all previous orders passed by the authorities assuming jurisdiction of different stages under the statute have to be taken to have been merged in every respect closing the chapter for their consideration on any score whatsoever. 13. This has also been accepted by the settlement authority in Settlement Revision Case No.2001 of 1989 in which all previous orders passed by the authorities assuming jurisdiction of different stages under the statute have to be taken to have been merged in every respect closing the chapter for their consideration on any score whatsoever. 13. This now takes us to the question as to whether the plaintiff and the defendant no.2 to 5 when admittedly were not the parties to the proceeding under Order 21 Rule 99 of the Code is also their predecessor-in-interest namely, Bishnu Kumar Dwibedi; whether the final order passed in the said proceeding would still bind them and accordingly, would come to stand on the way of adjudication of the present suit as a bar for its entertainment from the very beginning and for being held as not maintainable. It is not in dispute that the property claims to have been purchased by the Bishnu Kumar Dwibedi was not described as the suit land in that partition suit i.e. O.S. No.32 of 1977 (I) which had been filed by the son and daughter of Kunja Bihari Mohanty who happens to be the vendor of the Bishnu Kumar Dwibedi. Said Bishnu Kumar Dwibedi having already purchased the property from, Kunja Bihari Mohanty who is the predecessor-in-interest of the plaintiff of that suit i.e. O.S. No.32 of 1977 (I) was not made a party. This was not suppressed before the court and was well within its notice. Accordingly, that sold land was ordered to be adjusted towards 1/4th share of the plaintiffs as allotted under the preliminary decree. Accordingly, final decree has been passed and the same was put to execution vide Execution Case No.18 of 1985 and twelve years thereafter in the year 1997, the proceeding under Order 21 Rule 99 of the Code had come to be instituted by Godabari, the mother of defendant no.1. The successors-in-interest of Kunja Bihari Mohanty who is the vendor of the Bishnu Kumar Dwibedi were none else than the plaintiffs in the suit and very much parties to the execution proceeding as also in the proceeding under Order 21 Rule 99 of the Code. They had not only fought that proceeding, but also had challenged the final order by carrying appeal as provided in law and failed all through. They had not only fought that proceeding, but also had challenged the final order by carrying appeal as provided in law and failed all through. This plaintiff relies on the preliminary decree passed in the suit that her husband’s purchased the land from Kunja Bihari Mohanty had been adjusted towards the share of the plaintiff, the successors-in-interest of Kunja Bihari Mohanty and also so shown in the final decree and up to that stage takes its full advantage and has no complaint or any objection is raised for being not a party. But in so far as the proceeding under Order 21 Rule 99 of the Code is concerned, that non-impletion of party is projected as the ground to say that the order does not bind her and her children, who are defendant no.2 to 5. Having held that the complaint by a person not a party to the decree and execution proceeding; wherein the decree is put the execution is not merely confined to the description of the land as given in the decree under execution or even in the writ of delivery of possession; and can also be with reference to the land in possession either dispossessed or under threat of dispossession by improper execution that to illegally, it cannot be said at this moment that the said land as he claimed to have been purchased by the Bishnu Kumar Dwibedi being not under the execution, the question of that Godabari’s dispossession or on her entertaining strong apprehension/threat of dispossession from that land in her possession did not arise for entertainment of her petition. The successors-in-interest of the vendor of Bishnu Kumar Dwibedi through whom the plaintiff and defendant no. 2 to 5, claim the property being very much the parties to the said proceeding under Order 21 Rule 99 of the Code which has been adjudicated and decided in their presence, it is not permissible for the plaintiff, now to turn around and say that she or her children being not parties to the same are not bound by the order amounting to decree as passed therein, particularly when it has not been the case of the plaintiff that after passing of the decree, this order in the proceeding under Order 21 Rule 99 of the Code has been obtained by fraud or in collusion with the successors-in-interest of the vendor of Bishnu Kumar Dwibedi. Moreover, when the order in that proceeding under Order 21 Rule 99 of the Code amounts to decree having further been challenged by them in Misc. Appeal No.17/27/1999 has also been confirmed. Furthermore, it is important to be taken note of the fact that the plaintiff has also not adduced any such evidence in clearly placing the picture in support of her case throwing any light in that direction by examining any of the successor-in-interest of that Kunja Bihari Mohanty. After such long drawn legal battle, the record of right has already been issued and long thereafter the suit has been filed in the year 2008 after finally losing in the settlement revisional forum. This suit has been filed after lapse of more than a decade since the publication of such final record of right. 14. In view of the aforesaid discussion and reasons, this court finds that the submissions of the learned counsel for the respondent No.1 have the force that the suit as laid by the plaintiff for the reliefs claimed is not maintainable the eye of law and consequently, the submissions of the learned counsel for the respondent No.1 stand repelled. The finding thus is recorded that the suit is not maintainable in the eye of law and as such liable to be dismissed. In that view of the matter, the judgment and decree passed by the trial court stand annulled and the suit i.e. T.S. No.20/418/2008/2001 stands dismissed. 15. Resultantly, the appeal is allowed. The parties, however, are directed to bear their respective cost of litigation all throughout. Appeal allowed.