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2019 DIGILAW 427 (ORI)

Sindhu Pradhan (Dead) v. State Of Orissa

2019-06-28

A.K.RATH

body2019
JUDGMENT : A.K.Rath, J. This appeal at the instance of the plaintiffs assails the confirming judgment of the learned Civil Judge (Senior Division), Puri in Title Appeal No.7/55 of 1999/97. 2. Plaintiffs instituted the suit in their representative capacity. They represent the villagers of village Pratap Ramachandrapur Samil Basantapatana. Case of the plaintiffs was that the suit land originally recorded in the name of the predecessors-in-interest of defendants 2 to 4. The land vested in the State on 13.04.1961 free from all encumbrances. The suit land is communal in nature. The same was recorded in the name of the State in 1977 ROR under Rakhit Khata. While matter stood thus, defendants 2 to 4 filed Lease Case Nos.1447/64 and 389/70 before the Addl. Tahasildar for settlement of the land in their favour. The Addl. Tahasildar settled the land in their favour. They used to pay rent to the Government. Thereafter, defendants 2 to 4 instituted C.S No.54 of 1979 in the court of the learned Sub-Judge, Puri against the Collector, Puri. The suit was decreed ex-parte. The ROR was prepared in their names. When defendants created disturbance, they instituted the suit for declaration that the orders passed in OEA Lease Case Nos.1447/64 and 389/70 are illegal and for a declaration that the ex parte decree passed in O.S. No.54 of 1979 is not binding on the plaintiffs. 3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. It was pleaded that after vesting, they could not take steps for correction of ROR. They filed Lease Case Nos.1447/64 and 389/70 before the competent authority. In order to rectify the erroneous entries in the current settlement ROR, they filed O.S. No.54/79 and accordingly entries were rectified. The suit is barred by limitation, res-judicata and under Order 1 Rule 8 CPC. 4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court came to hold that the suit is not barred by limitation. The notice under Order 1 Rule 8 CPC is defective. There was no due proclamation in lease case. Mere use of the suit land for a long period of time does not confer right inasmuch as the plaintiffs have failed to prove express or implied grant or an inference of implied grant or dedication in their favour. The notice under Order 1 Rule 8 CPC is defective. There was no due proclamation in lease case. Mere use of the suit land for a long period of time does not confer right inasmuch as the plaintiffs have failed to prove express or implied grant or an inference of implied grant or dedication in their favour. The settlements in favour of defendants 2 to 4 are valid. Held so, it dismissed the suit. Unsuccessful plaintiffs assailed the judgment and decree before the learned Civil Judge (Senior Division), Puri, which was eventually dismissed. It is apt to state here that during pendency of the appeal, appellants 1 and 5 died, where after their legal representatives have been brought on record. 5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.1 to 5 of the appeal memo. The same are - "(1) Whether the leaned courts below committed serious illegality in holding that the civil court has no jurisdiction to examine the correctness of the orders passed by the O.E.A authority is vitiated for not keeping in mind the distinction between the provisions of the O.E.A Act and lease principles and whether the Civil Court has jurisdiction to question the settlement under lease principles ? (2) Whether the learned courts below acted illegally in holding that the Civil Court has no jurisdiction to re-open the matter in view of the order passed by the consolidation authorities without keeping in mind the prayer made in the suit and the settled portion of law that consolidation authorities have no jurisdiction to declare any order passed by the Civil Court or the revenue courts as invalid ? 3. Whether in view of accepting the pleadings and evidence of P.Ws that the villagers are using the suit land for different communal purposes since the time of their fore fathers, the learned courts below should have held that the plaintiffs have acquired communal right over the suit land by implied grant inasmuch as dired evidence may not be available by lapse of time ? 4. Whether the decisions of the learned courts below are liable to be set aside for non compliance of the mandatory provisions of Order 1 Rule 8 CPC ? 5. Whether the ex-parte decree passed in O.S. No.54/79 is binding on the plaintiffs to which they were not parties ?" 6. Heard Mr. 4. Whether the decisions of the learned courts below are liable to be set aside for non compliance of the mandatory provisions of Order 1 Rule 8 CPC ? 5. Whether the ex-parte decree passed in O.S. No.54/79 is binding on the plaintiffs to which they were not parties ?" 6. Heard Mr. Buddhiram Das on behalf of Mr.N.C. Pati, learned counsel for the appellants, Mr. Swayambhu Mishra, learned ASC for respondent no.1 and Mr.Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for respondents 2 to 9. 7. Mr. Das, learned counsel for the appellants submitted that defendants 2 to 4 filed C.S. No.54 of 1979. They obtained ex parte decree without complying with the requirements of Order 1 Rule 8 CPC. The plaintiffs were not parties to C.S. No.54/79 and as such, they are not bound by the decree. There was no proclamation in Lease Case Nos.1477/64 and 389/79. The civil court has jurisdiction to examine the correctness of the orders passed by the OEA authorities, if there is flagrant violation of law. The courts below ought to have held that the plaintiffs have acquired communal right over the suit land by implied grant by lapse of time. 8. Per contra, learned counsel for the respondents submitted that the suit is one Order 1 Rule 8 CPC. As the requirement of the said provision has not been complied with, the suit must fail. 9. The plaintiffs instituted the suit as representatives of the villagers of the village Pratap Ramachandrapur Samil Basantapatana. Pursuant to the order of the learned trial court, notice was published in the daily 'Prajatantra' dated 27.4.1993 under Order 1 Rule 8 CPC, vide Ext.5. Learned trial court held that the plaintiffs have instituted the suit praying, inter alia, for a declaration that the settlement of suit property in favour of the defendants is void, illegal, ex parte decree passed in O.S. No.54/79 is not binding on them and for permanent injunction against the defendants. The name of the forum or the number of the case had not been specifically mentioned. From Ext.5, it is evident that reliefs sought by the plaintiffs in para 14(a) of the plaint is conspicuously absent. There is no compliance of the mandatory provision of Order 1 Rule 8 CPC. 10. The name of the forum or the number of the case had not been specifically mentioned. From Ext.5, it is evident that reliefs sought by the plaintiffs in para 14(a) of the plaint is conspicuously absent. There is no compliance of the mandatory provision of Order 1 Rule 8 CPC. 10. In Harihar Jena (after him) Lobhabati Jena and others vs. Bhagabat Jena and others, (1987) CLT (Supp.) 165, this Court held that the provisions of Order 1 Rule 8 CPC are mandatory and not directory in nature and the notice under Order 1 Rule 8(2) is an essential pre-condition for the trial of the suit. The notice under the provision must disclose the nature of the suit as well a reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein and it must also state as to who are the persons who have been selected to represent the cause. Admittedly, the notice in the case has not been issued in such manner. It is the responsibility of the Court under Order 1 Rule 8 CPC to give proper notice and when it becomes defective, the trial of the suit becomes vitiated. 11. In Purna Chandra Panigrahi vs. Baidya Jani, Vol-74 (1992) C.L.T. 309, a Division Bench of this Court went in-depth into the matter and held that the provisions of Order 1, Rule 8 CPC are mandatory in nature. Notice under Order 1, Rule 8 (2) CPC is an essential pre-condition for trial of the suit. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves im-pleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The object for which Order 1, Rule 8, CPC has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate suit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole. 12. The ratio in the decisions cited supra applies proprio vigore to the facts of the case. 13. In the result, the impugned judgments are set aside. The suit is remanded to the learned trial court for de novo trial, which shall be disposed of after compliance the provision of Order 1 Rule 8 CPC. The appeal is allowed. Since the suit is remanded to the learned trial court, this Court refrains from answering the substantial questions of law enumerated in Ground Nos.1 to 3 and 5. There shall be no order as to costs.