Smt.B.Prabhavati Vs Srikota Achuta

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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S.A. No.253 of 1992

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(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)

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Smt. B. Prabhavati

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…. Appellant

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-versus-

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Sri Kota Achuta(dead) and others …. Respondents

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Appeared in this case:- For Appellant : Mr. P.V. Balkrishna, Advocate For Respondents : Mr. M. Mishra, Advocate assisted by Mr. S.S. Parida, Advocate

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CORAM: JUSTICE A.C. BEHERA

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JUDGMENT

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Date of hearing : 29.10.2025 / date of judgment : 23.12.2025

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A.C. Behera, J. This 2^nd appeal has been preferred against the partly confirming judgment.

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The appellant in this 2^nd appeal was the defendant no.2 before the trial court in the suit vide T.S. No.03 of 1987 and the appellant no.1 before the 1^st appellate court in the 1^st appeal vide T.A. No.06 of 1992.

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The respondent no.1 in this 2^nd appeal was the sole plaintiff before

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the trial court in the suit vide T.S. No.03 of 1987 and the respondent no.1 before the 1^st appellate court in the 1^st appeal vide T.A. No.06 of 1992.

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The Respondent Nos.2, 3, 4 and 5 in this 2^nd appeal were the defendant nos.1, 3, 4 and 5 in the suit vide T.S. No.03 of 1987 before the trial court and they were appellant nos.2 and 3 and Respondent nos.2 and 3 before the 1^st appellate court in the 1^st appeal vide T.A. No.06 of 1992.

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The suit of the plaintiff(K. Achuta Rao, respondent no.1 in this 2^nd appeal) was a suit for partition.

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The plaintiff and defendants belong to one family.

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In order to have a clarity, the undisputed family pedigree of the plaintiff and defendants as per to the pleadings of the parties is depicted

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hereunder :-

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Genealogy

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K. Chandraya
_______________________________________________________________________
K.Ramchanda(D-1) K. Achuta(plaintiff) K.Ravanamma(D.4) P. Sitalaxmi(D.5)
B.Pravabati(D-2)

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Page 2 of 17

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As per the above undisputed genealogical tree of the parties, K. Chandraya was their common ancestor. K. Chandraya died leaving behind his widow wife K. Ratnalamma(defendant no.3), two sons and two daughters, i.e., K. Ramachandra Rao(defendant no.1), K. Achuta(plaintiff), K. Ravanaamma(defendant no.4) and Patnuru Sitalaxmi(defendant no.5).

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The defendant no.2(B. Pravabati) is the daughter of K. Ramachandra Rao(defendant no.1).

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The suit land, i.e., Plot No.625/1099 an area A.0.105 decimals under Khata No.72 at Prasadraopetta, Jeypore described in schedule of the plaint is a house site.

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According to the plaintiff’s case, he(plaintiff) and defendants are all Hindus and they were guided and governed by Mitakshara school of Hindu Law.

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The suit properties along with other properties were the selfacquired properties of his father K. Chandraya. After the death of his father K. Chandraya, all the properties including the suit properties left by him devolved upon him(plaintiff) and defendant nos.1, 3, 4 and 5

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simultaneously and said properties including the suit properties have become the joint properties of the plaintiff, defendant nos.1, 3, 4 and 5.

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In the year 1968, due to some misunderstanding between him (plaintiff) and his mother(defendant no.3), his mother appointed some Arbitrators for distribution of their joint properties and the Arbitrators distributed their joint properties between them, but, he(plaintiff) did not agree with the same alleging that, the said award of the Arbitrators was the outcome of the influence. So, the so-called award of the Arbitrators could not become the rule of court. As such, the said award was not acted upon.

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In the year 1976, the defendant no.1 K. Ramchandra Rao, (eldest brother of the plaintiff) filed a suit for partition in the court of the learned Sub-ordinate Judge, Jeypore in respect of their joint and undivided properties situated in village Dangora, but, that suit was dismissed on the ground of non-joinder of necessary parties and non-inclusion of all the joint properties. To which, defendant no.1 challenged preferring an appeal vide T.A. No.16 of 1979. In the judgment and decree of the 1^st appeal vide T.A. No.16 of 1979, the learned District Judge, Jeypore held that, the so-called award passed by the Arbitrators in the year 1968 was neither acted upon nor the same was the rule of court and dismissed to

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the said 1^st appeal vide T.A. No.16 of 1979 of the defendant no.1.

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In spite of the dismissal of the suit as well as 1^st appeal vide T.A.

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No.16 of 1979 of the defendant no.1, the defendant no.1 managed to record the suit land in his name during Khanapuri Operation of the settlement in the year 1977 behind the back of the plaintiff and initiated a proceeding vide M.C. No.469 of 1977 before the Tahasildar, Jeypore for recording the suit land in favour of his daughter, i.e., B. Pravabati(defendant no.2) on the strength of a collusive gift deed executed by him(defendant no.1) in favour of his daughter, i.e., defendant no.2. The Tahasildar, Jeypore allowed the said M.C. No.469 of 1977 in favour of the defendant no.2 and passed an order for recording the suit land in the name of the defendant no.2 on the strength of the so-called collusive gift deed executed by defendant no.1 in favour of his daughter, i.e., defendant no.2.

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On being dissatisfied with the said order passed in M.C. No.469 of 1977, the plaintiff filed Objection Case No.104 of 1978 during the settlement operation before the Assistant Settlement Officer, Jeypore and the Assistant Settlement Officer, Jeypore passed an order for recording the suit land jointly in the name of the plaintiff and defendant no.1.

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The defendant no.1 challenged the said order passed in Objection Case No.104 of 1978 by the Assistant Settlement Officer, Jeypore preferring an appeal vide Appeal No.09 of 1979 before the Settlement

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Officer, Jeypore, but, the Settlement Officer, Jeypore dismissed that appeal vide Appeal No.09 of 1979 of the defendant no.1.

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Then, the defendant no.1 filed a revision vide R.P. Case No.467 of

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1980 before the Board of Revenue challenging the order passed by the Settlement Officer, Jeypore in Appeal No.09 of 1979, but, that revision of the defendant no.1 was dismissed.

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In spite of that, the RoR of the suit land was finally published erroneously on dated 23.01.1985 under Khata No.72 in the name of the defendant no.2.

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As the suit land is the joint and undivided properties of the plaintiff and defendant nos.1, 3, 4 and 5, for which, he(plaintiff) filed the suit vide

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T.S. No.03 of 1987 against the defendants praying for partition of his 1/5^th share from the suit properties and to declare the final publication of the RoR under Khata No.72 in respect of the suit land in the name of defendant no.2 as erroneous along with other reliefs, to which, he(plaintiff) is entitled for as per law and equity.

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The defendant nos.4 and 5 filed their written statement supporting the case of the plaintiff stating that, they have no objection, if their 2/5^th shares will be allotted in favour of the plaintiff in the partition, but,

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subsequently, they(defendant nos.4 and 5, two sisters of the plaintiff and defendant no.1) were set ex parte.

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The defendant nos.1 and 2 father and daughter contested the suit of the plaintiff vide T.S. No.03 of 1987 by filing their joint written statement denying the allegations/averments made by the plaintiff in his plaint taking their stands that, the suit land was the self-acquired property of the defendant no.1. As he(defendant no.1) was living together with his father K. Chandraya, though the document in respect of the purchase of the suit land was prepared in the name of his father, but, the suit land was all along under his possession and the same was never treated as joint family property. On dated 03.01.1968, the plaintiff, defendant no.2 and their mother(defendant no.3) had appointed some Arbitrators for division of their all joint properties and on dated 04.01.1968, the Arbitrators had passed their award, wherein the suit land was allotted in favour of his daughter, i.e., defendant no.2 and since then, i.e., since 04.01.1968, she(defendant no.2) is in possession and enjoyment of the suit land having her right, title and interest on the same. Her possession over the suit land is open and hostile to the interest of the plaintiff. She(defendant no.2) had/has been letting out the houses situated on the suit land to the tenants. The plaintiff is estopped from questioning the validity of the award passed by the Arbitrators. Because, the said award was signed by

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them. For which, the suit of the plaintiff is barred by limitation. As, she(defendant no.2) is the exclusive owner and in possession over the suit land and the houses thereon, the suit of the plaintiff is liable to be dismissed with cost against them(defendant nos.1 and 2).

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Basing upon the aforesaid pleadings and maters in controversies

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between the parties, altogether ten numbers of issues were framed by the learned trial court in the suit vide T.S. No.03 of 1987 and the said issues

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are:-

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I S S U E S

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i. Is the suit maintainable?

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ii. Whether the arbitrators are competent to give award by adjudicating the final dispute regarding the immovable property?

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iii. Is the court bound to follow the findings given in the award?

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iv. Is the suit barred by law of res judicata?

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v. Whether the plaintiff has 1/5^th share in the joint property and any portion was disposed of on the consent of the plaintiff at any time?

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vi. Was there any previous partition between the parties by metes and bounds?

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vii. Who purchased the suit property and who remained in possession of the same till institution of the suit?

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viii. Whether the defendant-2 acquired her title through adverse possession over the suit property?

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ix. Whether the decision of the Panchayat operate the law of estoppel against the plaintiff and is he precluded to demand partition in the court?

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x. To what relief the parties are entitled?

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In order to substantiate the aforesaid relief sought for by the plaintiff, during the trial of the suit, he(plaintiff) examined himself as P.W.1 and exhibited documents vide Exts.1 to 6 from his side.

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On the contrary, in order to nullify/defeat the suit of the plaintiff, the contesting defendant nos.1 and 2 examined four witnesses on their behalf including the defendant no.1 as D.W.3 and defendant no.2 as D.W.2 and relied upon series of documents on their behalf vide Exts.A to F.

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After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court answered all the issues in favour of the plaintiff and against the defendant nos.1 and 2 and basing upon the findings and observations made by the learned trial court in all the issues in favour of the plaintiff and against the defendant nos.1 and 2, the learned trial court decreed the suit of the plaintiff vide T.S. No.03 of 1987 on contest against the defendant nos.1 and 2 and ex parte against defendant nos.3, 4 and 5 entitling the plaintiff to get 3/5^th share from the suit properties and entitling defendant nos.1 and 3 to get 1/5^th share each without allotting any share in favour of the defendant no.2, as per its judgment and decree dated 09.08.1990 and 25.08.1990 respectively assigning the reasons that,

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“the suit land is the joint and undivided properties of the plaintiff

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and the defendant nos.1, 3, 4 and 5 and the same has not been divided between them, till yet, through metes and bound partition and the socalled arbitration award dated 04.01.1968 had neither been acted upon nor the same was made the rule of court. For which, the so-called arbitration award is ignored. That so-called arbitration award was also ignored in the earlier judgment and decree, which was passed in 1^st appeal vide T.A. No.16 of 1979, which appeal was filed by the defendant no.1. When, the two sisters of the plaintiff, i.e., defendant nos.4 and 5 have relinquished their shares in the joint suit land in favour of the plaintiff stating the same in their written statement, for which, the plaintiff is entitled to get 3/5^th share and the defendant nos.1 and 3 entitled to get 1/5^th share each.”

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On being dissatisfied with the aforesaid judgment and decree for partition of the suit properties passed by the learned trial court, the defendant nos.2, 1 and 3 challenged the same preferring 1^st appeal vide T.A. No.06 of 1992 being the appellants against the plaintiff and defendant nos.4 and 5 arraying them as respondents.

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After hearing from both the sides, the learned 1^st appellate court dismissed that 1^st appeal vide T.A. No.06 of 1992 of the defendant nos.2, 1 and 3, but, modified the shares of the plaintiff, defendant nos.1, 3, 4

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and 5, as per its judgment and decree dated 05.09.1992 and 21.09.1992 respectively and allotted 1/5^th share to the plaintiff, defendant nos.1, defendant nos.3, 4 and 5 each concurring/confirming all other findings and observations of the learned trial court except the shares of the plaintiff, defendant no.1, defendant nos.3, 4 and 5 assigning the reasons that,

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“preparation of RoR of the suit land under Khata No.72 alone in the name of the defendant no.2 is erroneous. When, except the written statement of the defendant nos.4 and 5, there is no other material regarding compromise or transfer deed relating to the transfer or relinquishment of their share in favour of the plaintiff, then, their shares as per law has not been transferred in favour of the plaintiff. For which, plaintiff, defendant nos.1, 3, 4 and 5 are entitled to get 1/5^th share each from the suit properties.”

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On being aggrieved with the aforesaid judgment and decree dated 05.09.1992 and 21.09.1992 respectively passed by the learned 1^st appellate court in T.A. No.06 of 1992, the defendant no.2 challenged the same preferring this 2^nd appeal being the appellant against the plaintiff, defendant nos.4 and 5 arraying them as respondent nos.1, 4 and 5 and also arraying the defendant nos.1 and 3, as proforma respondent nos.2 and 3.

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When, during the pendency of this 2^nd appeal, the respondent no.1(plaintiff), respondent no.2(defendant no.1) and respondent no.4(defendant no.4) expired, then, their legal heirs were substituted as respondents in their places.

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This 2^nd appeal was admitted on formulation of the following substantial question of law, i.e., :-

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(i) Whether the plaintiff is entitled to the relief of partition in view of the Arbitration Award dated 04.01.1968(Ext.E)?

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(ii) Whether the 1^st appellate court in T.A. No.16 of 1979 has jurisdiction to question the award, especially when such award was completed and signed by the Arbitrators?

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I have already heard from the learned counsel for the appellant(defendant no.2), learned counsel for the respondent no.5 and the learned counsel for the respondent nos.1(a) to 1(e).

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It is the undisputed case of the parties that, K. Chandraya was the father as well as common ancestor of the plaintiff and defendant nos.1, 4 and 5. The said K. Chandraya died leaving behind his widow wife, K. Ratnalamma (defendant no.3) and four children, i.e., defendant no.1, plaintiff, defendant nos.4 and 5, i.e., widow wife, two sons and two daughters.

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The suit land was purchased in the name of K. Chandraya.

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It is the case of the defendant no.1 that, though, documents in

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respect of the case land relating to its purchase was prepared in the name of K. Chandraya, but, he(defendant no.1) had paid the consideration amount to purchase the same, for which, he(defendant no.1) was the sole owner of the suit land.

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In the judgment of the 1^st appeal vide T.A. No.16 of 1979, it was specifically held that, the arbitration award dated 04.01.1968 was neither acted upon nor the same was made as the rule of court and that award has no legal effect.

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The judgment and decree passed by the learned 1^st appellate court in T.A. No.16 of 1979 arising out of the judgment and decree passed in T.S. No.22 of 1976 was not challenged by the defendant no.1 before any higher forum, though, the defendant no.1 was the plaintiff in the suit vide T.S. No.22 of 1976 and the appellant in T.A. No.16 of 1979 and the suit vide T.S. No.22 of 1979 and the 1^st appeal vide T.A. No.16 of 1979 both were dismissed.

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For which, the findings and observations made in the judgment and decree passed in T.A. No.16 of 1979 against the defendant no.1 had already been reached in its finality without being challenged/questioned before the higher forum by the defendant no.1.

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Therefore, the findings and observations made in the 1^st appeal vide T.A. No.16 of 1979 against the defendant no.1 cannot be altered in the subsequent suit and appeal, from which, the present 2^nd appeal vide S.A. No.253 of 1992 has arisen.

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Therefore, the defendant nos.1 and 2 are/were estopped under law to challenge the findings and observations made in the judgment and decree passed in T.A. No.16 of 1979 and to contend that, the arbitration award dated 04.01.1968 has the binding force on the parties.

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On this aspect the propositions of law has already been clarified in the ratio of the following decisions :-

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(i) In a case between Thirunagalinam vrs. Lingeswaran and others : reported in 2025(3) CCC32(S.C.) that, an order attains in its finality, unless the same is set aside through appropriate appellate or review mechanism.

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(ii) In a case between Asian School of Business Management Trust, Bhubaneswar vrs. Orissa Power Transmission Corporation Ltd. : reported in 2011(1) OJR-211 that, when the matter between the parties has reached in its finality, the same cannot be examined afresh.

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(iii) In a case between State of Mizoram and others vrs. Bhagheeratha Engineering Ltd. : reported in 2009(3) CCC-432(Gauhati) that, issue decided in a suit between

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same parties which attains finality cannot be decided in a subsequent suit between same parties.

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(iv) In a case between Government of Goa vrs. A.H. Jaffar and Sons and others : reported in 2008(2) CCC102(S.C.) that, Once the decision is rendered intra parties and attains finality a different view cannot be taken.

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When, the defendant no.1 was the appellant in the earlier appeal vide T.A. 16 of 1979 and when, the defendant no.1 has not challenged the judgment and decree passed in T.A. No.16 of 1979 arising out of the suit vide T.S. No.22 of 1976 preferring any 2^nd appeal against the same and when, in the findings and observations made in the 1^st appeal vide T.A. No.16 of 1979 arising out of the suit vide T.S. No.22 of 1976, it was held by the learned 1^st appellate court that, neither the Arbitration Award dated 04.01.1968 had acted upon, nor the same was made as a rule of court and the said so-called award dated 04.01.1968 has no legal effect, then at this juncture, in view of the principles of law enunciated in the ratio of the above decisions, the defendant nos.1 and 2 are estopped / precluded under law to challenge the above finally settled matter between the parties in T.A. No.16 of 1976 long after the judgment passed in T.A. No.16 of 1979 through their joint written statement in the present suit vide T.S. No.03 of 1987.

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Therefore, it cannot be held that, in the judgment and decree of T.A. No.16 of 19679, the 1^st appellate court had no jurisdiction or authority to give the findings against the so-called Arbitration Award dated 04.01.1968.

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As such, both the formulated substantial questions of law are answered against the appellant(defendant no.2).

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In view of the findings and observations made above, the petition under Order-41, Rule-27 of the C.P.C., 1908 of the appellant(defendant no.2) for adducing additional evidence at this 2^nd appellate stage is not entertainable due to lack of foundations about the same in the pleadings coupled with non-fulfilment of the essentials of the Order-41, Rule-27 of the C.P.C.

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For which, the I.A. No.06 of 2016 filed by the appellant(defendant no.2) under Order-41, Rule-27 of the C.P.C. is dismissed and disposed finally .

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As per the discussions and observations made above, when the aforesaid formulated substantial questions of law has been answered against the appellant(defendant no.2), then at this juncture, the question of interfering with the impugned judgment and decree passed by the learned 1^st appellate court in the 1^st appeal vide T.A. No.06 of 1992

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through this 2^nd appeal filed by the appellant(defendant no.2) does not arise.

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Therefore, there is no merit in this 2^nd appeal filed by the appellant(defendant no.2). The same must fail.

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In result, the 2^nd appeal filed by the appellant(defendant no.2) is dismissed on contest, but, without cost.

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The judgment and decree passed by the learned 1^st appellate court

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in T.A. No.06 of 1992 is confirmed.

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( A.C. Behera ) Judge

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Orissa High Court, Cuttack

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The 23^rd of December, 2025/ Jagabandhu, P.A.

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Signature Not Verified

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Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 26-Dec-2025 11:06:20

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Smt.B.Prabhavati v. Srikota Achuta

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Smt.B.Prabhavati v. Srikota Achuta

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