Second appeal against reversal of a title suit decree. Defendant No.2 died during the first appeal and his legal representatives were never substituted, so the first appellate court heard and decided the appeal against a dead man. The High Court held that judgment and decree unsustainable and restored the trial court's decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.133 of 2019
In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 16.05.2019 passed by the learned Additional District Judge, Balasore, in R.F.A. No.13/92 of 2018/2014, setting aside the judgment and decree dated 23.04.2014 & 01.05.2014 respectively passed by the learned Civil Judge, (Junior Division), Balasore, in Title Suit No.93/1998-I.
Sitanath Sahoo …. Appellant
-versus-
….
Smt. Kalpana Pradhan & Respondents
Others
Appeared in this case by Hybrid Arrangement
:
(Virtual/Physical Mode)
-
For Appellant Mr. R. K. Mohanty
Sr. Advocate
For Respondents - Mr. S. K. Mishra
Sr. Advocate
CORAM:
MR. JUSTICE D.DASH
Date of Hearing: 22.01.2024 :: Date of Judgment: 11.03.2024
D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged
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the judgment and decree passed by the learned Additional District Judge, Balasore, in R.F.A. No.13/92 of 2018/2014.
2. The Appellant as the Plaintiff had filed Title Suit No.93/1998-I in the Court of learned Civil Judge, Junior Division, Balasore for declaration of his right, title, interest, correction of the Record of Right (RoR) in respect of the suit land with further prayer of permanent injunction as against the predecessor in interest of Respondent No.1 to 4, namely Anadi Charan Pradhan, who had been arraigned as Defendant No.5 in the suit, the Respondent No.5 (since dead), the predecessor in interest of Harihar Barik, the original Defendant No.3 and Respondent No.6 (Defendant No.6) as also the State of Odisha. The suit stood decreed. The Defendant No.5 (Anandi Charan Pradhan) being aggrieved by the same, had carried an Appeal under section 96 of the Code. The First Appeal has been allowed.
3. In course of hearing of this present Second Appeal, which had been admitted on 29.05.2019 for answering the substantial questions of law framed; it came to the notice that present Respondent No.5, who was the Respondent No.2 before the First Appellant Court and the Defendant No.2 before the Trial Court had died on 18.05.2018. Therefore, on 08.12.2023 when hearing of this Appeal commenced, this Court framed the following question to be answered first before going to answer the substantial questions of law as had been framed on 29.05.2019.
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The question so posed is as under:-
“Whether for non-substitution of the legal representative/s of the Defendant No.2 before the First Appellate Court, the hearing of the Appeal when had been taken up and the judgment and decree have been passed; whether those judgment and decree of the First Appellate Court would be rendered nullity?
4. Heard Mr. R. K. Mohanty, learned senior counsel for the Appellant and Mr. S. K. Mishra, learned senior counsel for the Respondent. Perused the written notes of submission.
5. Keeping in view the submissions made, I have gone through the judgments passed by the Courts below as also the rival pleadings for the purpose of addressing the above question.
6. 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 Suit.
7. The Plaintiff in the suit had arraigned Ramachandra Barik as the Defendant No.2. It is stated that the Ramachandra Barik became the absolute owner of the suit land by purchasing the same from Sundarmani Dei by registered sale deed dated 05.08.1960 and accordingly, Ramachandra Barik became the absolute owner of the suit land and accordingly, rent was fixed in his name under section 8(1) of Odisha Estate Abolition Act, 1951 (for short, “the OEA Act”)
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vide order passed in OEA Case No.837 of 1963-64 and the rent schedule was issued in his name who was paying rent for the suit land. The Plaintiff claims to have purchased the suit land from that Ramachandra by registered sale deed dated 01.12.1975 for valuable consideration and to have entered into possession over the suit land. It is stated that the land has been erroneously recorded under Bebandobasta Khata in the name of Defendant No.3 to 4 without preparing the same in the name of the Plaintiff under Stitiban Khata.
8. The suit was decreed by the following order:-
“ It is declared that the suit land is the purchased property of the plaintiff and the publication of M.S.R.O.R. in the name of Defendant Nos.3 & 4 in “Bebandovasta Khata” and later recording of the same in the name of Kailash Barik (Defendant No.4) vide Khata 196/428 is wrong and illegal. Further the defendants are permanently retrained from disturbing in the peaceful possession of the suit land in any manner.”
9. The Defendant No.5 being aggrieved by the said judgment and decree had carried the First Appeal and he having died during pendency of the First Appeal, his legal representatives came on record and pursued the First Appeal. The case of Defendant No.5 in his written statement is that once for the suit land, his right, title has been decided by the Revenue Court and when independent title has accrued in his favour by fixation of rent, the Civil Court has no further jurisdiction to reopen the same and sit over to adjudicate upon
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the title afresh. The Defendant No.5 claims to have purchased the suit land from Defendant No.4 by registered sale deed dated 21.11.2008.
10. The suit having been decreed by judgment dated 23.04.2014, followed by the decree, sealed and signed on 01.05.2014; the First Appeal has been disposed of by the judgment delivered on 16.05.2019 followed by the decree. The First Appeal had been instituted in the year 2014. The date of death of Defendant No.2 being not disputed, since it has taken place on 18.05.2018, it is during the pendency of the First Appeal. Record reveals that the legal representatives of Defendant No.2 have not been brought on record under Order 22 Rule 4 read with Rule 11 of the Code nor the Defendant No.5 or his legal representatives, who pursued the First Appeal have sought for exemption from such substitution of the legal representatives of Defendant No.2 banking upon the provision of Sub Rule 4 of Rule 4 of Order 22 of the Code.
11. In the factual settings of the case in case of denial of the relief as claimed by the Plaintiff, the eventual remedy for the Plaintiff certainly would lie against the Defendant No.2 and after him as against his legal representatives.
12. The First Appellate Court is thus found to have heard the First Appeal and delivered the judgment as against the dead man, who being a party to the suit, his legal representatives remained
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unpresented in the First Appeal after the death of that Defendant No.2 when their legal liability in view of the judgment of the First Appellate Court vis-a-vis the Plaintiff has very much stood up. The factum of death of Defendant No.2 was not brought by the legal heirs of the Defendant No.5 who prosecuted the First Appeal, to the notice of the First Appellate Court so as to proceed further. Thus no order has been passed consequent upon the death of Defendant No.2, who even though was dead, the First Appeal was heard and decided as if living and now in view of the judgment and decree passed by the First Appellate Court running against the Plaintiff, the legal representatives of the Defendant No.2 have been affected as the legal liability has stood up to be fed by them. Accordingly, the judgment and decree as have been passed by the First Appellate Court in nonsuiting the Plaintiff when by the time of hearing of the Appeal, the Defendant No.2 was dead and no step as per law has been taken by the legal representatives of the Defendant No.5, who as the Appellants therein pursued the Appeal, the judgment and decree passed in the First Appeal after the death of the Defendant No.2 without his legal representatives being brought on record, cannot hold the field.
When that stands the position, as a logical sequitor, the judgment and decree passed by the Trial Court, decreeing the suit of the Plaintiff, granting him the reliefs spring into life to hold the field.
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13. In the wake of aforesaid, there arises no further need to answer the substantial questions of law framed while admitting this Appeal.
14. This Appeal is accordingly allowed. The judgment & decree passed by the Trial Court are hereby restored.
In the peculiar facts and circumstances, no order as to cost is passed.
Gitanjali
(D. Dash),
Judge.
Signature Not Verified
Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 19-Mar-2024 11:26:37
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1 issue framed by the court
Whether a first appellate court's judgment and decree passed without substituting legal representatives of a deceased party is a nullity.
4 provisions across 2 enactments
Sitanath Sahoo
Smt. Kalpana Pradhan & Others
D.Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
