Allowed

Khetrabasi Biswal v. State

Orissa HC27 Oct 2021SAO/8/2009

Case brief

AI extract

What is this about?

In a civil appeal under Section 96 CPC, the High Court modified the lower appellate court's order remanding the matter for framing an additional issue on occupancy rights. The Court held that, in the interest of justice, the trial court must provide an opportunity to both parties to lead evidence on the newly framed issue before rendering its decision, without imposing unreasonable restrictions.

What did the court decide?

The impugned order of the first appellate court was modified to direct the trial court to provide an opportunity to lead evidence on the newly framed issue before recording the answer and resubmitting

Khetrabasi Biswal Vs State — Landlord and Tenant | Orissa HC (2021)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

SAO No.8 of 2009

¶3

Khetrabasi Biswal & Others

¶4

…. Appellants Mr. M. Mohanty, , Advocate

¶5

-versus-

¶6

State of Orissa & Another

¶7

…. Respondents

¶8

Mr. Gajendra Nath Raut, ASC

¶9

CORAM:

¶10

MR. JUSTICE D.DASH

¶11

ORDER 27.10.2021 I.A. No. 19, 20, 21 of 2021

¶12

Order No.

¶13

¶14

This matter is taken up through hybrid arrangement (virtual/physical mode).

¶15

These three applications have been filed for substitution of the legal representatives of deceased Appellant Nos. 1, 9, 16 and 17 as mentioned in the petition and setting aside the abatement by condoning the delay in filing the same.

¶16

Heard.

¶17

Considering the submissions made and on going through the averments taken in the petitions, the prayers are allowed.

¶18

The I.As. are disposed of.

(D.Dash) Judge

Page 1 of 6

// 2 //

ORDER 27.10.2021 I.A. No.22 of 2021

¶23

Order No.

¶24

1. This is an application for expunging the name of Appellant No. 14 in view of her death on 4.1.2017 since her legal representative is already on record as parties.

¶25

Heard.

¶26

Considering the submission and on going through the averments taken in the petition, the prayer is allowed.

¶27

The I.A. stands disposed of.
(D.Dash)
Judge
ORDER
27.10.2021
SAO No.8 of 2009

¶28

Order No.

¶29

¶30

The cause title sheet carrying out the orders passed in the above I.As. in Court today being taken on record are accepted.

¶31

Heard learned counsel for the Appellants and learned Additional Standing Counsel in the matter of admission.

¶32

The Appeal is admitted on the following substantial question of law:-

¶33

“Whether the Lower Appellate Court while remanding the matter has erred in law by not affording the opportunity to the Appellants to adduce evidence with regard to the newly framed issue.”

¶34

Page 2 of 6

¶35

// 3 //

¶36

On consent of the learned counsel for the Appellant and learned Addl. Standing Counsel who is on advance notice, the Appeal is heard on the above substantial question of law.

¶37

The order follows:-

¶38

The Appellants as the unsuccessful Plaintiffs in the court of learned Civil Judge (Senior Division), Kendrapara in T.S. No. 87 of 1991 had carried the First Appeal under section 96 of the Code of Civil Procedure. The same came to be decided by the learned Addl. District Judge, Kendrapara on 27.02.2009 in Title Appeal No. 31 of 1999.

¶39

The Lower Appellate Court having gone through the averments taken in the plaint at para-4 and 5 found the Plaintiffs while advancing their claim as to have acquired title over the suit land by adverse possession, have also taken the specific stand in the alternative as to have acquired occupancy right over the suit land.

¶40

The Lower Appellate Court while addressing the contention raised from the side of the Plaintiffs as to nonframing of issue on that score in ruling upon their above alternative claim has taken a view that the Trial Court ought to have also framed an issue on that score for the effective disposal of the suit in adjudicating the rival claims in a just and proper manner.

¶41

Having said so, when the Lower Appellate Court having framed that as an additional issue has remanded the matter in order to answer that issue keeping the Appeal pending on his file; it has however imposed the restriction that the Trial Court would answer that issue taking into account the evidence

¶42

Page 3 of 6

¶43

// 4 //

¶44

already on record further keeping in view the pleadings. Accordingly, in that exercise, the parties have not been permitted to lead any further evidence.

¶45

Learned counsel for the Appellants submits that as no such issue had been framed, the Plaintiffs had no opportunity to tender the evidence on that score and when the Lower Appellate Court when has remanded the matter to the Trial Court to answer that issue in the interest of justice, the parties should have been provided with the opportunity to lead their evidence confining to that issue within the ambit of their respective pleadings. He therefore submits that the order of the First Appellate Court to the above effect is unsustainable in the eye of law and the substantial question of law thus has to find its answer in favour of the Appellant.

¶46

Learned Addl. Standing Counsel submits that when the Appellants had taken that alternative stand in the plaint, nonframing of issue was not a bar for them in leading the evidence on that score and rather the Appellants were under obligation to pilot their case before the Trial Court by leading evidence. He thus submits that opportunity during the trial having not been availed of by the Appellants, the First Appellate Court has rightly refused that scope of leading further evidence touching the newly framed issue.

¶47

Keeping in view the submissions made, the impugned order passed by the Lower Appellate Court being gone through; it is seen that the Lower Appellate Court having framed the issue as to whether the Plaintiffs have acquired occupancy right over the suit land under the provision of the Orissa Tenancy Act being settled raiyat of the village and having been in

¶48

Page 4 of 6

¶49

// 5 //

¶50

possession over the same for more than the statutory period has directed the Trial Court to consider the available evidence in the backdrop of the rival case of the parties and accordingly answer that issue and resubmit the matter for consideration in deciding the First Appeal.

¶51

The Lower Appellate Court in this matter while putting the restriction that the parties would not be allowed to adduce any fresh evidence, has not indicated any such reason which compelled for deviating from the normal procedure. When the issue had not been framed and is now being framed for being answered, this Court is of the considered view that in the facts and circumstances and in the interest of justice, the parties should have been given the scope to adduce evidence at least confining to that issue when in that event, the RespondentsDefendants are also in no way being prejudiced and rather it would stand to their advantage as they can also lead counter evidence.

¶52

In that view of the matter, the answer to the substantial question of law is recorded in favour of the Plaintiffs.

¶53

In the result, the impugned order passed by the First Appellate Court stands modified to the extent that the Trial Court before taking up the exercise of answering the issue, newly framed would provide opportunity to the parties to lead their evidence touching upon that issue only and then upon hearing argument would record the answer on that additional issue and resubmit the matter to the First Appellate Court for hearing and disposal of the First Appeal in accordance with law.

¶54

Page 5 of 6

¶55

// 6 //

¶56

Keeping in view the age of the litigation, it is directed that the Trial Court would do well to complete the exercise as aforesaid within six months hence.

¶57

In order to arrest the delay, the parties are directed to appear before the Trial Court on 08.11.2021 to receive further instruction and co-operate in the matter.

¶58

The Appeal is allowed to the extent as indicated above.

¶59

(D.Dash)
Judge
ORDER
27.10.2021
I.A. No.23 of 2021
Order No.
06. 1. In view of the disposal of the RSA, this application is
dismissed as infructuous.
2. The I.A. stands dismissed.
(D.Dash)
Judge
Aks

¶60

Page 6 of 6

Khetrabasi Biswal v. State

Case brief

What is this about?

What did the court decide?

Khetrabasi Biswal v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Banawarilal Vs Sukuru

Banchhanidhi Vs Bhasi

Prasanna Ku.Sadangi Vs Govt.of Orissa

Kazi Bewa Vs Rabindranath Nayak

Tapaneswar Meher Vs Rahas Barik

Satyaranjan Kar andANR Vs Nanigopal Pradhan andO