Orissa High Court
Tukuna Swain & Others vs State & Others on 7 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.5 of 2014
Tukuna Swain & Others ... Appellants
M/s. Samvit Mohanty, Advocate
-versus-
State & Others ... Respondents
Mr.G.N. Rout (ASC)
CORAM:
MR. JUSTICE D.DASH
ORDER
Order No. 07.12.2021
06. 1. This matter is taken up through hybrid arrangement
(virtual/physical mode).
2. The Appellants, by filing this Appeal under Section-
100 of the Code of Civil Procedure (hereinafter called as 'the
Code') have called in question the judgment and decree passed
by the learned Additional District Judge, Jagatsinghpur in
R.F.A. No.17 of 2011.
By the said judgment and decree while dismissing the
First Appeal filed by the Appellants (Plaintiffs) under section
96 of the Code in questioning the order dated 03.03.2011
passed by the learned Civil Judge (Jr. Division), Kujanga in
Civil Suit No.11 of 2009 saying that it lacks the jurisdiction to
entertain the suit against the Respondents (Defendants) as not
maintainable, has confirmed the said order.
3. For the sake of convenience, in order to avoid
confusion and bring in clarity, the parties hereinafter have been
// 2 //
referred to as they have been assigned with the position in the
Trial Court.
4. The Plaintiffs filed the suit for declaration of right, title,
interest and possession over the suit land. According to them,
the suit land is their ancestral property wherein they and
Defendant Nos.1 and 2 have their right, title and interest.
Accordingly, the Plaintiffs besides praying for declaration of
their right, title, interest and possession have prayed declaring
the publication of the Hal record of right as erroneous and to
permanently restrain the Defendants from alienating the land in
question. It is stated that during the consolidation operation the
suit properties have been illegally recorded in the name of the
Defendant Nos.1 and 2.
The objection having been raised from the side of the
Defendant Nos.1 and 2 as to maintainability of the suit in view
of the provision contained in section 51 of the Orissa
Consolidation of Holdings and Prevention of Fragmentation of
Land Act, 1972 (for short the 'OCH & PFL Act') further as to
the valuation of the suit property being more than what has
been stated in the plaint and thus lacks pecuniary jurisdiction
too and those being taken as the preliminary issues under
Order-14,Rule-2 of the Code has been heard and decided
against the Plaintiffs.
The Plaintiffs had resisted the move of the Defendants
to non-suit them in saying that those issues involve the mixed
questions of fact and law and, therefore, the same are not to be
taken up as preliminary issues.
5. The Trial Court, first of all, deciding to take up those
two issues as preliminary issues has gone to answer those
against the Plaintiffs and accordingly, the suit has been
// 3 //
dismissed. The First Appellate Court being moved by the
unsuccessful Plaintiffs has confirmed the order.
6. Learned counsel for the Appellants submits that the
orders passed by the courts below are erroneous. According to
him, this question as to lack of jurisdiction being not a pure
question of law but a mixed question of fact and law at the
threshold those could not have been decided. He, therefore,
contends that the above stands as the substantial question of
law for being answered in this Appeal.
7. Keeping in view the submissions made, I have carefully
gone through the orders passed by the courts below.
Admittedly, the area where the suit land situates was
under the Consolidation Operation and it reveals that the suit
land has been recorded therein in the name of Defendant Nos.1
and 2 which the Plaintiffs are challenging to be illegal in
further stating that the Defendant Nos.1 and 2 have managed to
obtain the said record of right prepared in their name by
playing fraud upon the Authority. Before the courts below, the
Plaintiffs have not filed any document to show that the
Consolidation Operation in the area is over and there has been
the de-notification under section 41 of the OCH & PFL Act.
The lower Appellate Court has observed as to the Civil Court's
limited jurisdiction in the matter of setting over the said Record
of Right. The Plaintiffs in the plaint have not pleaded any such
reason calling for the interference in the matter.
8. In view of above, the courts below having passed the
impugned order holding the suit as not maintainable by
answering the preliminary issues, this Court is not in a position
to accept the submission of the learned counsel for the
Appellant that the Appeal merits admission.
// 4 //
9. Accordingly, the Appeal stands dismissed. No order as
to cost.
(D. Dash)
Judge
Himansu
