Premlal Panda vs Panchanan Panda And Others
2021 Latest Caselaw 10902 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                       WRIT APPEAL No.61 of 2006
From the judgment dated 19th September, 2006 passed by learned
Single Judge in O.J.C. No.5350 of 1998.
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Premlal Panda                        ......                 Appellant
                                   Versus
Panchanan Panda and Others           ......               Respondents

Advocate(s) appeared in this case :-
      For Appellant              : Mr. Sidharth Mishra, Advocate
       For Respondents          : Mr.Satyanarayan Mohapatra, Advocate


             CORAM : THE CHIEF JUSTICE
                     JUSTICE B.P. ROUTRAY

                           JUDGMENT

21st October, 2021 B.P. Routray, J.

1. The judgment dated 19th September, 2006 of the learned Single Judge passed in OJC No.5350 of 1998 is under challenge in the present appeal.

2. Jagannath had 4 sons namely, Krushna Chandra, Ugrasena, Panchanan and Sahadev. Krushna Chandra died issueless. Ugrasena had three sons namely, Mahadev, Premlal and Ramlal. Panchanan had one son, namely Bhabagrahi and Sahadev had two sons namely, Subash and Duryodhan @ Surya Kumar.

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3. The dispute pertains to the properties of Krushna Chandra. Initially, Bhabagrahi filed Title Suit No.24/42 of 1978/81 praying to declare him as the adopted son of Krushna Chandra, Premlal is not the adopted son and the registered Adoption Deed dated 14th December, 1977 is invalid and illegal. The learned Munsif, in his judgment dated 23 rd December, 1981 dismissed the suit. Against the same no appeal was preferred.

4. Subsequently during the consolidation proceeding, Bhabagrahi filed Objection Case No.23 of 1991 claiming to be the adopted son of late Krushna Chandra and consequent devolution of the properties in his favour. This was dismissed and Bhabagrahi carried it in Appeal Case No.73 of 1992 before the Deputy Director, Consolidation which was also dismissed. No further challenge was made to the same.

5. On the other side Panchanan and Premlal also filed different other objection cases. Panchanan filed Objection Case No.26 of 1991 and 68 of 1991 before the Consolidation Officer with a prayer to record the landed properties of late Krushna Chandra jointly in the names of other three surviving brothers of Krushna Chandra. Premlal filed Objection Case Nos.70 of 1991 and 17 of 1991 praying for recording of lands of late Krushna Chandra in his name claiming to be the adopted son of late Krushna Chandra on the basis of the registered Adoption Deed dated 14th December, 1977. Those four objection cases were disposed of by common judgment dated 29 th April, 1992 directing allotment of 1/3rd share of the properties of late Krushna Chandra to each of the brothers, namely Ugrasen, Panchanan and Sahadev thereby rejecting the claim of Premlal placing reliance on the findings in the judgment of learned Munsif dated 28th December, 1981.

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Said rejection order of the Consolidation Officer dated 29th April, 1992 were challenged in Appeal case Nos.73, 77, 78, 79 and 80 of 1992 by Premlal and Bhabagrahi. All such appeals were dismissed by common order dated 18th September, 1993. Premlal then carried it in revision before the Joint Commissioner of Settlement and Consolidation in RC Case No.51 of 1994. The Joint Commissioner by judgment dated 27 th February, 1998 allowed the prayer of Premlal holding him as the adopted son of late Krushna Chandra and directed for recording of all his lands in favour of Premlal.

The same was questioned by Panchanan and others in the writ petition. The learned Single Judge allowed the writ petition and set aside the order of the Revisional Court dated 27 th February, 1998. As such, the present appeal has been filed by Premlal.

6. The short issue involved here is, whether the findings recorded by the learned Munsif, Sambalpur in T.S. No.24/82 of 1978/81 in judgment dated 23rd December, 1981 declaring Premlal as not the adopted son of Krushna Chandra and the registered Deed of Adoption dated 14th December, 1977 as invalid and illegal, would operate as the res-judicata in the subsequent proceeding before the Consolidation Authorities.

7. Before proceeding to further discussion on the issue, it would be better to understand the facts first. The undisputed facts are that, Title Suit No.24/82 of 1978/81 before the Munsif, Sambalpur was between the same parties as before the Consolidation Authorities and the learned Munsif, Sambalpur was the competent Court in respect of

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issue raised before him in the said Title Suit. The issues as framed by the learned Munsif are as follows:-

     (i)     Is the suit maintainable?
     (ii)    If Krushna Chandra (Defendant No.1) adopt Premlal

(Defendant No.2 and present Opposite Party No.1) valid?

(iii) If the Deed of Adoption dated 14th December, 1977 in favor of Premlal (Opposite Party No.1) valid and genuine and was acted upon ?

(iv) Was the Plaintiff- Bhabagrahi (opposite party No.3) ever taken in adoption by the defendant No. 1- Krushna Chandra and his wife? If so, is it valid and was acted upon?

     (v)     Is there any cause of action?
     (vi)    To what relief if the plaintiff entitle?
     (vii)   Is the suit barred by Law of Limitation?

8. The decision of the Learned Munsif on issue Nos. (ii) & (iii) are that, Krushna Chandra never adopted Premlal and the Deed of Adoption dated 14th December, 1977 is not valid and genuine document. The said finding of the learned Munsif has attained finality as no further challenge to his judgment dated 23rd December, 1981 was taken up by any of the parties.

9. The Joint Commissioner, in his order dated 27th February, 1998 disposing of the revision petition, which order was impugned in the writ petition, held that it will be injustice to bind the Petitioner on the basis of some finding passed against him in the subsequent proceeding by applying principles of res-judicata. It was held that the principle of res-judicata will not be applicable to the present Consolidation Case and cannot be applied against the Petitioner. By recording such finding in favour of the Petitioner (Premlal), the Joint Commissioner allowed

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the revision in favour of Premlal declaring him to be the adopted son of Krushna Chandra and consequently directed for recording of the land in his favour.

10. The learned Single Judge has given the finding that the issue of adoption of Premlal by Krushna Chandra as well as the Deed of Adoption dated 14th December, 1977 was considered by the Munsif as the competent Court and has been conclusively decided against Premlal holding him not to be the adopted son of Krushna Chandra and further the Adoption Deed dated 14th December, 1977 as invalid. The learned Single Judge has further held that such an issue having directly and substantially raised in the former suit between the same parties, cannot therefore be raised and decided again in the subsequent proceeding before the Consolidation Authority being barred by the principles of res-judicata enumerated in Section 11 of the Code of Civil Procedure (CPC).

11. The law mandated in Section 11 of the CPC along with 8 explanations appended thereto is fairly clear enough and has been further clarified in numerous decisions of the Apex court as well as various High courts. In the case of Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, the Supreme Court has made it clear that, the rule of res-judicata incorporated in Section 11 of the CPC prohibits the Court from trying an issue which has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res-judicata. In the case of Midanpur Namindari Company v. Naresh Narayan Roy, AIR 1992 Privy

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Council 241, Hon'ble Apex Court has further clarified the position that, if dismissal of the prior suit was on a ground affecting maintainability of the suit, any finding in the judgment adverse to the Defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein to operate as res-judicata in a subsequent suit between same parties.

Both these above decisions have been relied on by the learned Single Judge along with other decisions of the Supreme Court.

12. In the instant case the issue in question was substantially in issue in the previous suit, the competency of the earlier court in deciding the issue is not questioned and the parties in the lis remains same, the decision of the former court shall definitely operate as res-judicata against all subsequent proceedings including the proceeding before Consolidation Authorities.

13. The legal position is unambiguous and the findings of the learned Single Judge are based on strong reasons. Accordingly we do not find any ground to interfere with the same and the writ appeal is dismissed. In the circumstances no order is made as to costs.

( B.P. Routray) Judge

(Dr. S. Muralidhar) Chief Justice M.K. Panda/Sr. Steno