Satyavama Harichandan @ vs Fakir Charan Parida
2023 Latest Caselaw 695 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                           SAO No.02 of 2016

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


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

   Satyavama Harichandan @     ....                                   Appellants
   Beura & Others
                         -versus-

   Fakir Charan Parida                        ....                Respondent


            For Appellant          :      M/s. S. Swain, B.R.Kar & A.
                                          Mishra.

            For Respondents :             M/s.S. Pani, S.S.Deo,I.J.
                                          Begum & M.M.Pattanaik-Sole
                                          Respondent.

                                          M/s. G.Mishra, P.P. Mohanty
                                          & B.R.Swain-Respondent
                                          Nos.2 & 3.

   PRESENT:


      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY


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      Date of Hearing:12.01.2023 and Date of Order:20.01.2023
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     Biraja Prasanna Satapathy, J.

1. The present Appeal has been filed challenging the

judgment and decree dated 16.01.2016 passed by the

learned ADJ-cum-Special Judge CBI-II, Bhubaneswar in

RFA No.11/68 of 2015/2013.

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2. It is contended that originally C.S. No.223/2010 was

filed by late Fakir Charan Parida, the common ancestors of

present respondent Nos. 1(a) to1(d) with a prayer to

permanently injuct the appellants herein from selling the

residual 50% of the land, which is the suit schedule land

and for other reliefs. Learned Trial Court vide its judgment

and decree dated 24.07.2013 dismissed the suit on contest

against the present appellants. Challenging the said

judgment and decree passed in C.S. No.223/2010, the

original plaintiff Fakir Charan Parida moved learned

District Judge, Bhubanewar. The said appeal on being

transferred to the Court of learned Addl. District Judge-

cum-Special Judge, CBI-II, Bhubaneswar, was renumbered

as RFA No.11/68 of 2015/2013. Learned 1st Appellate

Court vide its judgment and decree dated 16.01.2016

remanded the matter to the learned court below for retrial

with a direction to readmit the suit under the original

number in the register of the civil suit and proceed to

determine the suit and the evidence recorded during the

original trial subject to just exception be evidence during

the trial.

2.1 Mr. S. Swain, learned counsel for the Appellants

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vehemently contended that the prayer as made in the

original suit seeking permanent injunction against the

present appellants was dismissed on contest vide judgment

and decree dated 24.07.2013 by the learned Civil Judge,

(Senior Division), Bhubaneswar. But the learned 1st

Appellate Court without proper appreciation of the said

judgment and decree so passed by the learned Trial Court

proceeded on a wrong footing by holding that the learned

Trial Court has not framed the issues in terms of the

provision contained under Order-14, Rule-1(5) of C.P.C.

2.2. It is also contended that the plaintiff while making a

prayer for permanent injunction against the present

appellants in respect of 50% of the residue land, relied on

the deed of acknowledgement of the deed of adoption

bearing No.978 dated 21.03.1966. The said deed is a deed

of acknowledgement of the deed of adoption and was

marked as Ext.1 by the original plaintiff. Learned Trial

Court after framing different issues and while deciding the

Issue Nos.3 & 4 take into consideration the enforceability of

the deed of acknowledgment dated 21.03.1966. After a

vivid discussion on the question of validity of the deed

learned Trial Court held that the plaintiff is not entitled to

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succeed as the heir of Gurubari and accordingly plaintiff

has no right, title, interest in respect of the suit land. While

holding so, the prayer for permanent injunction was

refused by the learned Trial Court.

2.3. Mr. Swain, learned counsel for the Appellant

contended that since the issue with regard to the

enforceability of the deed of acknowledgement of the

adoption, dated 21.03.1966 was discussed by the learned

Trial Court while deciding the Issue No.3, learned 1st

Appellate Court should not have remanded the matter by

holding that the issues having not framed in terms of

Order-14, Rule-1(5) of CPC, the suit is liable for retrial.

Accordingly, it is contended that the impugned judgment

and decree passed by the learned 1st Appellate Court is

illegal and not sustainable in the eye of law.

2.4. During pendency of the present appeal when the

original plaintiff/respondent no.1 died, the legal heirs of the

original respondent No.1 was substituted vide order dated

14.02.2022 as Respondent Nos.1(a) to 1(d) and notices were

issued against them vide the said order. When the

respondent Nos.1(a) to 1(d) tried to avoid in accepting the

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notice and in the meantime the appellants came to know

that basing on the deed of acknowledgment of the adoption,

the original plaintiff has sold the suit property by executing

a registered sale deed, I.A No.9/2022 was filed by the

appellant under Order-1, Rule-10 of C.P.C to implead the

purchasers as party to the proceeding. This Court vide

order dated 25.11.2022, while allowing the prayer

impleaded Respondent Nos.2 and 3 as party to the present

appeal and issued notice to Respondent No.2 as well as

Respondent Nos.1(a) to 1(d) by Special Messenger and to

Respondent No.3 by Speed Post, Respondent Nos.1(a) to

1(d) in spite of due service of notice did not appear before

this Court. Therefore, the notice made against the

Respondent Nos.1(a) to 1(d) was treated as sufficient.

3. Mr. G. N. Mishra, learned counsel appearing on behalf

of Respondent Nos.2 and 3 contended that basing on the

deed of acknowledgement of adoption, the original plaintiff

has sold the suit property in favour of the Respondent

Nos.2 and 3 and they are now in possession of the same.

3.1 It is also contended that since the suit was originally

filed by late Fakir Charan Parida with a prayer to

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permanently restrain the present appellants from selling

the residual 50% of the land and the said suit being a suit

for injunction simplicitor, the deed of acknowledgement of

the adoption executed on 21.03.1966 was never an issue

before the learned Trial Court while dismissing the lis.

3.2. It is also contended that though the issue with regard

to the execution of the deed of acknowledgement of the

adoption was considered while deciding Issue Nos.3 & 4,

but no specific issue was framed to decide as to whether

the said deed of acknowledgment of adoption is a valid one

in the eye of law.

3.3. It is also contended that since the learned Trial Court

while framing the issue vide order dated 24.06.2011 has

not followed the provision contained under Order-14, Rule-

1(5) of C.P.C, learned 1st Appellate Court placing reliance

on the decision of the Hon'ble Apex Court, remanded the

suit for retrial under Order-41, Rule-23-A of C.P.C. Since

the question of granting injunction depends on the title over

the land, enforceability of the deed of acknowledgement of

the adoption being not an issue framed by the Trial Court,

learned 1st Appellate Court rightly remanded the matter for

retrial of the suit and no interference is called for.

// 7 //

4. I have heard Mr. Sanjib Swain, learned counsel for

the Appellant and Mr. Gopinath Mishra, learned counsel for

the Respondent Nos.2 & 3. 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 claim of the original plaintiff is

dependent on the deed of acknowledgement of the adoption

executed on 21.03.1966 vide Ext.1, learned Trial Court has

not framed any issue to decide its enforceability in the eye

of law. Learned Trial Court has only dealt with the same,

while deciding Issue Nos.3 and 4. Since no issue has been

framed to determine the enforceability of the deed executed

vide Ext.1, learned 1st Appellate Court taking into account

that aspect has rightly remanded the suit for fresh disposal.

This Court also finds that the learned 1st Appellate Court

came to a just conclusion by holding that learned Trial

Court while framing the issue vide order dated 24.06.2011,

has not followed the provision contained under Order 14,

Rule 1(5) of C.P.C. Learned 1st Appellate Court as per the

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considered view of this Court has rightly held that the

issues have been framed by the learned Trial Court without

following the provision contained under Order-14, Rule-1(5)

of C.P.C.

5.1. Since learned 1st Appellate Court while deciding the

appeal found that the issues have been framed not in

accordance with the provision contained under Order-14,

Rule-1(5) of C.P.C and no issue having been framed to

decide the enforceability of the deed of acknowledgment of

the adoption vide Ext.-1, as per the considered view of this

Court, no illegality or irregularity has been committed by

the learned 1st Appellate Court while remanding the suit

vide its judgment and decree dated 16.01.2016. Therefore,

this Court while confirming the said judgment and decree is

not inclined to entertain the present appeal.

5.2. However, taking into account the submissions made

by the learned counsel appearing for the Parties that the

suit is of the year 2010 and the original plaintiff has died in

the meantime, learned Trial Court is directed to conclude

the retrial of the case within a period of six months from the

date of receipt of this order.

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It is also observed that since this Court after hearing

learned counsel for the Appellant and Respondent Nos.2

and 3 vide order dated 19.12.2022 directed the parties to

maintain status quo over the suit property till disposal of

the appeal, the said order of status quo passed by this

Court on 19.12.2022 shall continue till disposal of the suit

in terms of the direction issued by the learned 1st Appellate

Court.

6. With the aforesaid observations and directions, 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)