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2019 DIGILAW 57 (ORI)

Rama Deo v. State Of Orissa

2019-01-24

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in the suit for declaration of title, confirmation of possession and in the alternative for recovery of possession and permanent injunction. 2. The case of the plaintiff was that the suit land was recorded in the name of Lord Balunkeswar Mahesh Bije Badasasan, Keonjhar. After abolition of estate, it was wrongly recorded in the name of the Government as Anabadi. The Executive Officer of the deity filed O.E.A. Case No. 40 of 1986 before the O.E.A. Collector, Keonjhar to record the suit land in favour of deity. By order dated 10.07.87, the O.E.A. Collector settled Ac.18.07 dec. in favour of deity on rayati status subject to payment of back rent and salami from 1970-71 to 1986-87. On 17.09.91, the O.E.A. Collector directed the Executive Officer of deity to deposit back rent. The Executive Officer deposited Rs. 17,631.70 paisa on 21.04.1994 towards back rent and salami. By order dated 12.04.94, the O.E.A. Collector directed correction of R.O.R. and issuance of patta in favour of deity. The R.O.R. was issued and land was recorded in favour of deity. While matter stood thus, the Executive Officer of deity executed an agreement to sell the suit land in her favour on 02.01.94, since she was in possession and assured her to sale the same after correction of R.O.R. She paid Rs. 6,000/- towards advance on 29.01.1994 to Executive Officer vide receipt no. 803. She was in permissive possession of the suit land. Thereafter, the Executive Officer filed O.A. No. 1 of 1994 (II) under Sec.19 of O.H.R.E. Act, 1951 before the Commissioner of Endowments, Orissa, Bhubaneswar to accord permission to sell the suit land and other lands to meet the day to-day expenditure of the deity. On 30.1.95, the Commissioner of Endowments allowed the application to sell the land @ Rs. 5,500/- per decimal and keep the money in fixed deposit. The Executive Officer registered two sale deed nos.1380 and 1381 respectively in her favour for a consideration of Rs. 38,000/- on 2.6.95. Ac.0.08 dec. of land was purchased from Plot No. 178/2 and 179/1. Under registered sale deed no. 1381, Ac.0.025 was purchased from Plot No. 178/1. Possession of the land was delivered to her. Defendant no. 3, who has no semblance of right, title or possession over the suit land, tried to make boundary wall over the suit land. Ac.0.08 dec. of land was purchased from Plot No. 178/2 and 179/1. Under registered sale deed no. 1381, Ac.0.025 was purchased from Plot No. 178/1. Possession of the land was delivered to her. Defendant no. 3, who has no semblance of right, title or possession over the suit land, tried to make boundary wall over the suit land. Her son filed Misc. Case No. 51/95 under Sec.144 Cr.P.C. before the S.D.M., Keonjhar. On 02.07.95, the S.D.M. directed the parties to maintain status quo. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra. 3. The defendant nos.1 and 2 filed a joint written statement pleading, inter alia, that description of suit land described in the plaint does not tally with the sale deeds. It was recorded as Sadaka in sabik khata no.2, sabik plot no. 5 in 1914-15 settlement. In current settlement, it was recorded in the name of State in Khata No. 137. Mutation Case No. 40/86 was initiated for settlement of land of some properties of deity. On an erroneous report of Amin, rent was assessed in favour of deity. The plots were mutated in deity's favour. But sabik plot no.5 was not settled in favour of deity. Therefore plaintiff had not acquired any title over the suit land. She is not in possession of the suit land. While preparing plot index in settlement, hal plot no.179 had been erroneously referred to sabik plot no.10. Mutation case no. 40/86 had been wrongly referred to as O.E.A. Case. The suit land had never been given to deity for any purpose. State of Orissa is the paramount owner of suit land. Mochibandha High School applied for alienation of suit land alongwith some other land, whereafter Alienation Case No. 17/82 was registered on 20.7.82. The case is subjudice. The school is in possession of suit land. Accordingly certificates have been granted by Tahasildar, Keonjhar by Resolution dated 16.12.94. Government of Orissa took over management of Mochibandha High School. The School and its assets have been taken over by the State. That School now functions under the control and supervision of defendant no.2. Suit land was never the property of the deity. The plaintiff has not acquired any title by virtue of the sale made by the Executive Officer. Plaintiff is not in possession of the suit land as would be revealed from the reports obtained in Crl.Misc. That School now functions under the control and supervision of defendant no.2. Suit land was never the property of the deity. The plaintiff has not acquired any title by virtue of the sale made by the Executive Officer. Plaintiff is not in possession of the suit land as would be revealed from the reports obtained in Crl.Misc. Case No. 51/95 under Sec.144 Cr.P.C. The conduct of Naresh Chandra Soy, the then Executive Officer of deity in obtaining permission under Sec.19 of the O.H.R.E. Act, 1951 in O.A. No. 1/94 and selling the suit land appeared to be mysterious. Soon after this sale and some other sales in the name of members of plaintiff's family, Naresh Chandra Soy was relieved of his charges. No document or reference relating to disputed transfers is now available in the office of Executive Officer of deity. 4. Defendant no.3, Headmaster of Mochibandha High School filed written statement-cum-counter claim praying, inter alia, for declaration that the registered sale deed nos.1380 and 1381 dated 02.06.95 illegal and void, the plaintiffs have no title over the suit land, confirmation of its possession and permanent injunction. The stand of the defendant no.3 is similar to defendant nos.1 & 2. 5. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary. The suit was dismissed. The counter claim of the defendant no. 3 was allowed. Assailing the judgment and decree passed in the suit, plaintiff filed R.F.A. No. 49 of 2007 before the learned District Judge, Keonjhar, which was eventually dismissed. 6. Heard Mr. Samir Kumar Mishra, learned counsel for the appellant. 7. In course of hearing, Mr. Mishra, learned counsel for the appellant raised various contentions with regard to merits of the case. This Court did not delve into the same on the following reasons. 8. Against the judgment and decree passed in T.S. No. 88 of 1995, plaintiff filed R.F.A. No. 49 of 2007 before the learned District Judge, Keonjhar. No appeal was filed against the judgment passed in counter claim. 9. The seminal question that hinges for consideration is whether the judgment and decree of the learned trial court in the counter claim shall operate as res judicata ? 10. In Sheodan Singh vs Smt. Daryao Kunwar, (1966) AIR SC 1332, the apex Court held:- “91........ No appeal was filed against the judgment passed in counter claim. 9. The seminal question that hinges for consideration is whether the judgment and decree of the learned trial court in the counter claim shall operate as res judicata ? 10. In Sheodan Singh vs Smt. Daryao Kunwar, (1966) AIR SC 1332, the apex Court held:- “91........ Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be resjudicata whatever may be the reason for the dismissal.” 11. In Rajni Rani & Another v. Khairati Lal & Others, (2014) AIRSCW 6187, the apex Court held:- “15. From the aforesaid enunciation of law, it is manifest that when there is a conclusive determination of rights of parties upon adjudication, the said decision in certain circumstances can have the status of a decree. In the instant case, as has been narrated earlier, the counter-claim has been adjudicated and decided on merits holding that it is barred by principle of Order 2, Rule 2 of C.P.C. The claim of the defendants has been negatived. In Jag Mohan Chawla and Another v. Dera Radha Swami Satsang and Others dealing with the concept of counter-claim, the Court has opined thus:- “... is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit.” 16. Keeping in mind the conceptual meaning given to the counter-claim and the definitive character assigned to it, there can be no shadow of doubt that when the counter-claim filed by the defendants is adjudicated and dismissed, finality is attached to it as far as the controversy in respect of the claim put forth by the defendants is concerned. Nothing in that regard survives as far as the said defendants are concerned. If the definition of a decree is appropriately understood it conveys that there has to be a formal expression of an adjudication as far as that Court is concerned. The determination should conclusively put to rest the rights of the parties in that sphere. ....... 17....... there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree........” 12. In Smt. Kishori Devi and others v. Rameshwar Prasad, (2017) AIR Patna 187, the question arose (i) Whether a decree granting relief to the defendants in the counter-claim is separately appealable or a composite appeal is maintainable against the judgment and decree of the trial court by the plaintiff whereby the suit has been dismissed but the counter-claim has been decreed ? and (ii) Whether non-filing of the appeal against the decree passed in the counter-claim in accordance with law and procedure would attract the bar of res judicata in the appeal filed only against the judgment and decree dismissing the suit ? Taking a cue from the decision of the apex Court in the case of Rajni Rani, the Court held: “15........... Taking a cue from the decision of the apex Court in the case of Rajni Rani, the Court held: “15........... that a counter-claim filed in a suit has to be tried as a cross suit with all legal implications and consequences and the order passed in such a counter-claim has to be appealed separately in accordance with law and procedure. In the said case, no separate appeal was filed by the plaintiff-respondent against the decree of the counter-claim of the defendants which attained finality thereby and the said fact was potent enough to attract the bar of res judicata......” 13. This Court in the case of Karunakar Panda v. Durgabati Bewa and others, (1981) AIR Orissa 23 held that:- “16........ But where the subject-matter of each of the two suits or appeals is different and the decision in the two proceedings, though stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceeding will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceeding.” 14. Mr. Mishra, learned counsel for the appellant submits that since one of the decree was drawn up, only appeal filed. The same was not pointed out by the first appellate court. Hence the matter may be remitted back to the first appellate court so as to enable the appellant to file two appeals. The submission of the learned counsel is difficult to fathom. Order 41 Rule 1 CPC provides that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment. In view of the fact that the plaintiff has not appealed against the judgment and decree passed by the counterclaim, the said judgment shall operate as res judicata. 15. The logical sequitur of the analysis made in the previous paragraph is that the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.