Sri Daya Shankara Sahu @ vs Sri Mahesh Prasad Sahu &
2023 Latest Caselaw 694 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                           SAO No.21 of 2015

An appeal under Order 43 Rule 1(u) of the Code of Civil
Procedure, 1908.


                                   ..................

   Sri Daya Shankara Sahu @     ....                                    Appellant
   Jaya Sankara Sahu
                          -versus-

   Sri Mahesh Prasad Sahu &                   ....               Respondents
   Others

            For Appellant          :      M/s. S. Udgata, S.Udgata &
                                          A. Mishra.


            For Respondents :             M/s.S. Mohapatra, J. Panda
                                          & S.Khadanga.


   PRESENT:


      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY


     -----------------------------------------------------------------------------
      Date of Hearing:10.01.2023 and Date of Order:20.01.2023
     -----------------------------------------------------------------------------

     Biraja Prasanna Satapathy, J.

1. The present Appeal has been filed challenging the

judgment and decree dated 31.08.2015 passed in RFA

No.12/2014 by the learned Addl. District Judge, Kuchinda.

2. It is the case of the appellant that the appellant as the

plaintiff filed C.S. No.10 of 2010 before the learned Civil

Judge, (Sr. Division), Kuchinda with a prayer to declare the // 2 //

right, title, interest of the plaintiff over the suit land and to

permanently injuct the defendant from interfering in the

peaceful possession of the plaintiff over the suit land.

Learned Trial Court decreed the suit vide judgment and

decree dated 17.04.2014 in respect of the land recorded

under Ms. Khata No.142/13 and Ms. Khata No.69.

2.1. Challenging the judgment and decree passed in C.S.

No.10 of 2010, the present respondents moved the learned

Addl. District Judge, Kuchinda in RFA No.12/2014.

Learned First Appellate Court vide the impugned judgment

and decree dated 31.08.2015 remanded the suit for fresh

hearing with a direction to settle the issue as to whether

the Willnama executed by late Parasnath Sahoo is a

fraudulent one. The present appeal accordinlgy was filed

challenging the judgment and decree of the learned 1st

Appellate Court.

2.2. It is contended that this Court while issuing notice of

the matter vide order dated 20.05.2016 passed an interim

order restraining the trial court from proceeding in C.S.

No.10 of 2010 and accordingly no progress has been made

to the suit after remand.

// 3 //

2.3. Learned counsel for the Appellant contended that

while deciding the suit, learned Trial Court framed as many

as five issues and the issue which was framed by the First

Appellate Court for settlement was already considered and

decided by the learned Trial Court. Accordingly, it is

contended that since the issue as to whether the Willnama

executed by late Parasnath Sahoo is a fraudulent one

framed by the learned First Appellate Court was an already

an issue taken up by the learned Trial Court and decided in

favour of the present appellant, while decreeing the suit,

the learned First Appellate Court committed grave error in

directing for settlement of the said issue while remanding

the suit for fresh hearing.

2.4. It is also contended that while deciding the Issue

Nos.5 & 6, learned Trial Court decided in detailed about the

veracity of the Willnama executed in favour of the present

appellant by late Parasnath and after a detailed discussion

learned Trial Court rightly held the Willnama to have been

executed properly in favour of the present appellant.

Therefore, on that issue, the First Appellate Court should

not have remanded the matter with a direction to frame an

issue and to decide the same.

// 4 //

3. Mr. S. N. Mohapatra, learned counsel appearing for

Respondent Nos.1 to 3 on the other hand while supporting

the impugned judgment and decree passed by the learned

First Appellate Court contended that since the Willnama in

question has been executed by late Parasnath Sahoo in

favour of the appellant also includes the ancestral property

as well as the property not acquired by late Parasnath

Sahoo, the Willnama executed by him is a suspicious one

and should not have been accepted by the learned Trial

Court while deciding Issue Nos.5 & 6.

3.1. It is also contended that since in the written

statement the present respondents alleged that the

Willnama executed on 20.05.2007 is a fraudulent one and

no issue since was framed to decide the said plea of the

respondents, learned First Appellate Court has rightly

directed the learned Trial Court to settle such an issue and

to decide the suit afresh.

3.2. It is also contended that since the Willnama executed

by late Parasnath Sahoo in favour of the appellant contains

the ancestral property as well as the property not acquired

by late Parasnath Sahoo, the declaration of the right, title,

interest of the suit property by the learned Trial Court being

// 5 //

found illegal, learned First Appellate Court has rightly

remanded the suit for fresh hearing and disposal.

Accordingly, it is contended that no interference is called

for by this Court with the impugned judgment and decree.

4. I have heard Mr. S. Udgata, learned counsel for the

Petitioner and Mr. S. N. Mohapatra, learned counsel for

the Opposite Party. On the consent of the learned

counsel appearing for both the Parties, the matter was

taken up for final disposal at the stage of admission and

disposed of by the present order.

5. Having heard learned counsel for the Parties and after

going through the materials available on record, this Court

finds that even though the suit was filed seeking

declaration of right, title, interest of the land recorded

under M.S. Khata No.142/13, 69 and 144 of Mouza-

Dehuripada and M.S. Khata No.106/114 of Mouza-

Gadapose, but learned Trial Court only decreed the suit in

respect of the property which was exclusively recorded in

the name of late Parasnath Sahoo under M.S.Khata

No.142/13 and Ms. Khata No.69 i.e. the land recorded vide

Ext.2 & 4. This Court also finds that the learned Trial

Court while decreeing the suit in part in respect of the land

// 6 //

recorded under M.S. Khata No.142/13 and M.S. Khata

No.69, not only framed an issue to decide as to whether the

plaintiff has got his right, title and interest over the suit

land by virtue of the Willnama executed by late Parasnath

Sahoo on 20.05.2007, but also while deciding the said

issue, learned Trial Court has taken into consideration the

evidence laid by the respective parties. The said issue was

discussed in detail prior to coming to the conclusion that

the Willnama executed by late Parasnath Sahoo in respect

of the land recorded under M.S. Khata No.142/13 and M.S.

Khata No.69 under Ext.2 and 4 being the self acquired

property of late Parasanath Sahoo, the Plaintiff has got

right, title interest over the land recorded under M.S. Khata

No.142/13 and 69 in Mouza-Dehuripada. Learned Trial

Court rightly did not accept the plea of the

plaintiff/appellant for declaring his right, title, interest over

the other portion of the land, bequeathed by the Testator

late Parasanath Sahoo, recorded under Ms. Khata No.144

in Mouza-Dehuripada and Ms. Khata No.186/114 of

Mouza.Godaposh. Since the issue which was framed by

the learned First Appellate Court while remanding the

matter for fresh disposal has already been decided by the

learned Trial Court, while deciding the Issue No.5, as per

// 7 //

the considered view of this Court, learned First Appellate

Court committed gross error in remanding the matter with

framing of the issue in question.

5.1. Since learned Trial Court has only allowed the claim

of the appellant in respect of the land exclusively recorded

in the name of late Parasnath Sahoo under Ms. Khata

No.142/13 and 69 in Mouza-Dehuripada vide Ext.2 and 4,

learned 1st Appellate Court should not have remanded the

matter by framing the issue in question.

Therefore, this Court is inclined to interfere with the

impugned judgment and decree passed by the learned First

Appellate Court on 31.08.2015 in RFA No.12/2014. While

quashing the judgment and decree, this Court is inclined to

confirm the judgment and decree passed by the learned

Trial Court vide its judgment and decree dated 17.04.2014.

6. Accordingly, the SAO stands disposed of. However,

there shall be no order as to costs.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 20th of January, 2023/ Subrat (Sr. Steno)