Kunjabihari Pal & Another vs Unknown
2021 Latest Caselaw 11880 Ori

              HIGH COURT OF ORISSA : CUTTACK
                             RSA NO.380 OF 2003

      In the matter of appeal under Section-100 of the Code of Civil
Procedure assailing the judgment and decree dated 21.4.2003 and
5.5.2003 respectively passed by the learned Additional District Judge,
Dhenkanal in Title Appeal No.13 of 1994.
                               .........

       Kunjabihari Pal & Another                             ::::    Appellants.

                                  -:: VERSUS ::-
       Sarapanch, representing
       Jarada Grama Panchayat & Others                ::::           Respondents.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

-----------------------------------------------------------------------------------------

        For Appellants                 ...       M/s.A.K. Mishra
                                               M/s. P.Ku. Ray, S.N. Sharma, B.P.
                                               Samal, G.S. Samantray & S.Latif,
                                               Advocates
        For Respondents                ...       Mr. G.Kukherji, P. Mukherji,
                                               S.Patnaik, A. Pradhan & S.R.
                                               Patra, Advocates
                                             ------
PRESENT:
                 THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing and Judgment: 18.11.2021

--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of

the Code of Civil Procedure (for short, 'the Code') has assailed the

judgment and decree dated 21.4.2003 and 5.5.2003 respectively passed {{ 2 }}

by the learned Additional District Judge, Dhenkanal in Title Appeal

No.13 of 1994.

By the said judgment and decree while dismissing the First

Appeal filed by the Predecessor-in-Interest of the present Appellant who

was the Defendant in the suit has confirmed the judgment and decree

passed by the learned Civil Judge (Senior Division), Dhenkanal in T.S.

No.05 of 1993.

It may be stated here that the original Defendant having died

during pendency of the First Appeal, his legal representatives who are

the present Appellants having been substituted in his place had pursued

the First Appeal. The Respondent No.1 had filed the suit as Plaintiff and

that having been decreed, the unsuccessful Defendant having carried the

First Appeal has not succeeded in that move.

2. 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 Trial Court.

3. The Plaintiff's case in short is that the suit tank is locally known

as 'Kadamba Dhar' ad measuring Ac.3.54 decimals as per description

containing in Sabak settlement record of the year 1910-11 was under

Plot No.2078 standing in the name of Rajsarkar. It was bounded by high

lands at its three sides and only on the western side there stood the {{ 3 }}

embankment. To the southern side of the suit tank, another tank which

is called 'Bhaga Munda' situates with the common ridge. 50% of the

said ridge is under plot No. 1953 which is paddy land of Dayanidhi Pal.

Several tenants have also got their lands adjacent to the eastern side of

the said tank. On the western and northern side of the suit tank there are

lands of the tenants and there is a hillock at the eastern side of the suit

tank. The ridge in between the suit tank Kadamba Dhar and the paddy

field in plot No. 1953 are included in the said paddy field.

4. It is stated that the suit tank has been excavated during Ex-State

period by the Ruler where public used to utilize the water for irrigation

of their paddy lands and the tenants used derive the benefit thereby were

repairing the tank whenever necessary. In the record of right of the year

1910-12, existence of one mango tree, palm trees and khajuri (Date

plam) trees had been noted. However, in course of time, most of the

trees have been destroyed the corresponding plot as per the record of the

current settlement is 1955 (ridge). The Plaintiff- Grama Panchayat has

been noted in the ROR to be in possession of the said suit tank. Jarada

Grama Panchayat represented by its Sarapanch is the Plaintiff. This was

originally in Chitalpur Grama Panchayat and the suit tank had been

transferred to that Grama Panchayat which is used to be leaded out for

pisci-culture only. After creation Jarada Grama Panchayat, the suit tank {{ 4 }}

was leased out for pisci-culture by the Plaintiff-Grama Panchayat,

keeping full control and supervision thereof. Nearby tenants used to

irrigate their lands taking water from the suit tank through its sluices.

It is stated that the Defendant-Udayanath Pal along with others

had brought a suit i.e. T.S. No.02 of 1969 against the Plaintiff-Panchayat

and Chitalpur Grama Panchayat further arraigning the State of Orissa

and one Sridhar Pal as parties. In that suit, they claimed their right, title

and interest over the suit land which was later on amended in claiming

declaration of exclusive right of enjoyment of water of the tank for the

purpose of irrigation and pisci-culture. The suit was dismissed. They

having filed the First Appeal lost and then though they had carried

Second Appeal to this Court it had been dismissed way back on

30.6.1978. Thereafter they filed T.S. No.12 of 1986 arraigning only

State of Orissa as a party. They claimed their right, title, interest and

possession over the suit Plot No.1955 measuring Ac.0.41 dec. further

showing it to be un-plotted land and claiming the whole of the tank to be

the tank embankment. The suit was decreed on 27.7.1989. This Plaintiff-

Panchayat was not a party to the said suit. It had been filed by the

Defendant suppressing the factum of institution of the earlier Suit, First

Appeal and Second Appeal and the result thereof. This move by the

Defendant is said to be a clever one in order to grab the suit tank. As the {{ 5 }}

Defendant started damaging the existing trees on the embankment, the

Plaintiff-Panchayat ascertained the fact that such a decree has been

obtained by him in a later suit by suppressing the material facts and

playing fraud upon the court. Accordingly, the Plaintiff-Panchayat filed

the suit to declare said judgment and decree passed in T.S. No.12 of

1986 as null and void.

5. The Defendant contested the suit. It is stated that the ancestors of

the Defendant had excavated the suit tank even though the same was

recorded in the name of the Rajsarkar. The decree impugned in the suit

is said to have been rightly passed and it is stated that it is not liable to

be declared as null and void.

6. The Trial Court on going through the evidence has finally held the

Defendant as guilty of suppressing the true facts and obtaining the

decree in T.S No. 12 of 1986 by playing fraud. It has been held that the

Defendant's move was clandestine and having lost the litigation all

through in T.S. No.02 of 1969, uptill this Court; such a mischievous

plan had been hatched. It has been said that in relation to suit tank as

there has already been final decision in T.S. No.02 of 1969 which has

been confirmed in Title Appeal No. 16 of 1974 and then again in Second

Appeal No. 244 of 1975, the judgment and decree passed in T.S. No. 12

of 1986 behind the back of the Plaintiff-Panchayat is liable to be {{ 6 }}

declared as null and void. The above conclusion has been wholly

accepted and upheld by the First Appellate Court.

7. Heard Mr. P.K. Ray, learned counsel for the Appellant Nos. 1(a)

and (b) (Defendants) and Mr. G. Mukherji, learned counsel for the

Respondent No.1 (Plaintiff).

8. Learned counsel for the Appellants (Defendants) submits that the

courts below have erred in law by holding the lawful judgment and

decree rightly passed in T.S. No.12 of 1986 as null and void. It is stated

that the said suit having been contested by the State and finally decreed,

the courts below are wrong in saying that the judgment and decree in the

said suit had been passed behind the back of the Plaintiff-Panchayat. He

submits that above are the substantial questions of law standing to be

answered in this Appeal.

9. Learned counsel for the Respondent No.1 (Plaintiff) submits all in

favour of the judgments returned by the courts below. According to him,

it is a vexatious and frivolous litigation at the instance of original

Defendant No.1 which is being now pursued by his legal

representatives. It is stated that the Defendant having lost the litigation

in the first round even by carrying the same to be High Court in Second

Appeal has later on avoiding the Plaintiff filed the suit and behind its

back had obtained a decree which under no circumstance can stand to {{ 7 }}

operate as against the Plaintiff-Panchayat since the property in question

stood vested with the Panchayat which is its absolute owner. It is

submitted that had at all these facts relating to the earlier round of

litigation concerning the suit tank would have been there before the

Court adjudicating upon T.S. No.12 of 1986, the judgment and decree

called in question in the suit filed by this Plaintiff -Panchayat would not

have been passed.

10. Keeping in view the submissions made, I have carefully gone

through the judgments passed by the courts below. Admittedly, the first

round litigation had been initiated by the Defendant in claiming the

right, title, interest and possession over the suit tank. This relief initially

sought for had been later on amended in claiming the exclusive right of

user of water for irrigation etc. That suit being dismissed by the Trial

Court, the result had been confirmed in the First Appeal carried by this

Defendant and thereafter this Court in the Second Appeal filed by this

Defendant refused to interfere with the same. So there was no occasion

for the Defendant to initiate the second round of civil litigation

concerning the suit land in twisting the facts and modulating description

as his right over the suit tank and embankment in any manner stood

negated putting all the controversies at rest. The property having been

vested with the Plaintiff-Panchayat, the suit had been filed without {{ 8 }}

making Panchayat a party. So it goes without saying that the said

judgment and decree as passed are not binding on the Plaintiff-

Panchayat and in so far as the Plaintiff-Panchayat is concerned, said

judgment and decree has no affect and they being the absolute owner,

the judgment and decree passed in T.S. No.12 of 1986 is to be held as

null and void and the original Defendant nor his legal representatives

cannot be said to have derived any right whatsoever over the suit tank

and embankment. These mischiefs being apparent, the courts below

have rightly declared the judgment and decree passed in T.S. No. 12 of

1986 as null and void in saving the public property from being grabbed

by the Defendants. This Court without any hesitation thus rejects the

submission of the learned counsel for the Appellants.

The Appellants are directed to pay the costs of the litigation all

throughout to the Plaintiff-Panchayat.

11. In the result, the Appeal stands dismissed.

(D. Dash), Judge.

Aksethy