Orissa High Court
Salipur College vs Salipur Training College on 21 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA NO.228 OF 2014
(From the judgment dated 22.2.2014 and decree dated
4.3.2014 passed by learned 1st Addl. District Judge, Cuttack
in R.F.A. No.110/2013 reversing the judgment dated
12.7.2013 passed by the Civil Judge (Jr. Division), Salipur in
C.S. No.52 of 2006).
Salipur College, Salipur
... Appellant
-versus-
Salipur Training College
Salipur and others
... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr. Jayadeep Pal,
Advocate,
Mr. Abhijit Pal,
Advocate
-versus-
For Respondent No.1: Mr. S.P.Mishra
Sr. Advocate
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CORAM:
JUSTICE SASHIKANTA MISHRA
RSA No.228 of 2014 Page 1 of 14
JUDGMENT
21.7.2023.
Sashikanta Mishra,J. The Appellant was the Defendant No.1 in C.S.
No.52/2006 of the Court of Civil Judge (Jr. Division),
Salipur which was dismissed vide judgment passed on
12th July, 2013 followed by decree on 27th July, 2013.
The said judgment and decree was set aside in appeal
as per judgment and decree passed on 22nd February,
2014 and 4th March, 2014 respectively by the Addl.
District Judge, Cuttack in R.F.A. No.110/2013. The
present appeal has been filed questioning the
correctness of the judgment passed by the First
Appellate Court.
2. For convenience, the parties are referred to as
per their respective status in the Court below.
3. The Second Appeal was admitted on the
following substantial question of law;
"Whether in view of dismissal of the earlier
suit bearing C.S. No.61 of 2003 of the court
of learned Civil Judge (Jr. Division), Salipur
on contest and in view of attainment of the
finality of said judgment and decree
passed therein, the present suit ought to
have been held to be barred under Order 2
Rule 2 of the Code of Civil Procedure?"
. 4. The present Respondent No.1 being the Plaintiff
filed the aforementioned suit for declaration of right,
title and interest including possession over the suit
property with an alternative prayer to direct the
Defendant No.1(present Appellant), Salipur College to
execute a deed of conveyance in favour of the plaintiff.
The plaintiff was a wing of Salipur College along with
another wing namely, Pharmacy College with both
being under the common management of the College.
On a proposal submitted by the management of the
College as per Resolution passed on 24th August 1980
before the Government in the Department of Education
and Youth Services and accepted by it, private land
adjoining the College to the extent of Ac.7.388 decs.
was allowed to be acquired by Defendant No.1 (Salipur
College) on the condition of the entire cost thereof to
the tune of Rs.6,20,406.30 being borne by Plaintiff.
The entire cost was deposited being collected from
different sources including from the two wings. On 4th
March, 1986 Salipur College instructed the Plaintiff
College to bear the cost of the suit land which was
calculated as Rs.75,745.00. On 5th March, 1986, the
amount was deposited by the Plaintiff College. The
Pharmacy wing was similarly directed to deposit the
amount which it did. Thus, on deposit of the entire
amount Ac.6.523 decs. of land in place of Ac.7.388
decs. including the suit land was acquired in the name
of Salipur College from its private owners. The
possession of land was handed over in favour of the
Principal-cum-Secretary, Salipur College by way of a
certificate granted on 24th August, 1987. On 12th
November, 1988 a meeting was held for final allotment
of plots of land acquired and accordingly, the suit land
was exclusively allotted by Salipur College in favour of
the Plaintiff Training College and possession was also
delivered. Since then, the Plaintiff is in peaceful,
continuous and uninterrupted possession. On 17th
July, 2003 the Defendant intended to encroach upon a
part of the suit land for which the plaintiff filed a suit
being C.S. No.61/2003 with prayer for declaration of
title, possession and permanent injunction. The suit
was however, dismissed on contest by holding that the
same had been filed only to avoid the execution of a
deed of conveyance. Thereafter, the plaintiff requested
the Defendant No.1 to execute a deed of conveyance in
its favour, but the Defendant No.1 refused for which
the plaintiff filed the present suit claiming the relief as
already stated hereinbefore.
5. Out of three defendants, only Defendant No.1
contested the suit while Defendant No.3 adopted the
written statement filed by Defendant No.1. In its
written statement, Defendant No.1 admitted the case of
the plaintiff to the extent that the right, title and
interest over the suit property is in fact in favour of the
plaintiff and therefore, the prayer made in the suit be
allowed. Since plaintiff is the owner of the suit property
in possession, no deed of conveyance is required to be
executed in its favour.
6. Basing on the rival pleadings, the trial Court
framed four issues for determination including the
pivotal Issue No.III, which runs as follows;
"III. Whether the plaintiff is entitled to a
decree of declaration of its right, title,
interest and possession over the suit
land or in alternative a direction be
issued to the defendant no.1 to execute a
deed of conveyance in respect of the suit
land in favour of the plaintiff?"
7. After considering the oral and documentary
evidence, the Trial Court observed that despite
claiming the relief of declaration of right, title and
interest and possession, the prayer of the plaintiff is
actually confined to the execution of deed of
conveyance by the Defendant No.1 in its favour.
However, such prayer was found to be non-specific and
abstract inasmuch as the plaintiff had not specified the
form and nature of conveyance which it sought from
the Defendant No.1. The Trial Court further refused to
rely upon the resolution of the Managing Committee on
the ground that the same cannot confer title upon any
person in respect of any property. As regards the
previous suit (C.S. No.61/2003), the Trial court held
that both the suits contained identical prayers and
only to avoid the principle of res-judicata the plaintiff
had added the alternative prayer for direction to
defendant no.1 to execute the deed of conveyance.
Thus, holding the suit as a collusive one, the Trial
Court held that the plaintiff has no cause of action to
institute the suit as defendant No.1 is not the rightful
person to execute a deed of conveyance in favour of the
plaintiff and moreover in the absence of any evidence
the relief of declaration of title cannot be granted.
8. In the First Appellate Court, it was contended on
behalf of the plaintiff-appellant that since Defendant
No.1 had admitted the title of the plaintiff over the suit
land but had only resisted the prayer to execute a deed
of conveyance, the Trial Court committed gross error of
law in dismissing the suit by holding the same to be
barred by the principle of res-judicata. In course of
hearing of the appeal, the Government pleader
representing the other defendants acknowledged the
entire claim of the plaintiff-appellant and as such the
plaintiff did not insist upon the other relief claimed by
it for execution of deed of conveyance. The First
Appellate Court specifically found that such relief had
not been claimed in the earlier suit and that the oral
and documentary evidence on record clearly revealed
that the plaintiff has right, title and interest over the
suit property and is in peaceful and exclusive
possession thereof since 12th November, 1988. The
First Appellate Court therefore, held that under such
circumstances, it cannot be held that the plaintiff had
no cause of action to agitate. Further, relying upon
some case laws the First Appellate Court held that the
plaintiff can be said to have possessory title over the
suit property. Therefore, applying the principle
'possession follows title' it was held that the Trial Court
committed an error in denying the relief for declaration
of right, title, interest and possession in favour of the
plaintiff. The First Appeal was thus allowed in part by
issuing necessary declaration in favour of the plaintiff.
9. Heard Mr. Abhijit Pal, learned counsel for the
Appellant and Mr.S.P.Mishra, learned Senior Counsel
appearing for the contesting Respondent No.1.
10. Assailing the judgment of the First Appellate
Court, Mr. Pal would argue that the Resolution dated
12th November, 1988 on the basis of which the plaintiff
was allotted the suit land was never exhibited before
the Trial Court. Therefore, the finding of the First
Appellate Court that the plaintiff has possessory title
over the suit property is entirely illegal. Mr. Pal would
further contend that the earlier suit claiming the same
relief having been dismissed on contest, the
subsequent suit including the prayer for direction to
the Defendant No.1 to execute the deed of conveyance
is hit by the principles enshrined under Order II Rule 2
C.P.C. inasmuch as the alternative relief for direction
to execute the deed of conveyance was available to be
claimed also in the first suit but was not done. Mr. Pal
has relied upon a decision of the Apex Court in the
case of Gurubux Singh v. Bhoora Lal; reported in AIR
1964 SC 1801 in support of his contention.
11. Mr. S.P.Mishra, learned Senior counsel
appearing for the Plaintiff-Respondent No.1, on the
other hand, would argue that the bar under Order II
Rule 2 of C.P.C. has no automatic application but has
to be pleaded and satisfactorily established. In order
to sustain the plea the concerned party is required to
make necessary pleadings and also to satisfactorily
establish the same. In the case at hand, the Defendant
No.1 never took the plea of bar under Order II Rule 2
of C.P.C. in its written statement for which no issue
was framed by the Trial Court. According to Mr. Mishra
therefore, it is not open to the Defendant No.1 to raise
such plea at this belated stage. Mr. Mishra has also
relied upon several judgments of the Apex Court in this
regard namely;
(1) Alaka Gupta vrs. Narendra
Kumar Gupta (Civil Appeal
No.8321/2010).
(2) Rikob Das A Oswal vrs.
Deepak Jewellers; reported in (1999)
6 SCC-40.
(3) Dalip Singh Vrs. Mehar Singh
Rathee; reported in (2004) 7 SCC 650.
(4) B. Santoshamma and another
vrs. D. Sarala and another;
reported in (2022) 19 SCC 80.
12. The facts of the case as narrated hereinbefore
are undisputed inasmuch as the plaintiff had originally
filed a suit being C.S. No.61/2003 claiming the relief of
declaration of right, title, interest and possession over
the suit property. In the subsequent suit i.e. C.S.
No.52/2006 the same relief was claimed and in
addition, alternative relief of direction to execute the
deed of conveyance was claimed. On the face of it, the
subsequent suit appears to be barred by the principles
underlined under Order II Rule 2 of C.P.C.. In the case
of Gurubux Singh (Supra), the constitution Bench of
the Apex Court held as follows;
"In order that a plea of a bar under
Order 2 Rule 2 (3), Civil Procedure Code
should succeed the defendant who
raises the plea must make out (1) that
the second suit was in respect of the
same cause of action as that on which
the previous suit was based, (2) that in
respect of that cause of action the
plaintiff was entitled to more than one
relief, (3) that being thus entitled to more
than one relief the plaintiff, without leave
obtained from the Court, omitted to sue
for the relief for which the second suit
had been filed. From this analysis it
would be seen that the defendant would
have to establish primarily and to start
with, the precise cause of action upon
which the previous suit was filed, for
unless there is identity between the
cause of action on which the earlier suit
was filed and that on which the claim in
the later suit is based there would be no
scope for the application of the bar. No
doubt, a relief which is sought in a plaint
could ordinarily be traceable to a
particular cause of action but this might,
by no means, be the universal rule. As
the plea is a technical bar it has to be
established satisfactorily and cannot be
presumed merely on basis of inferential
reasoning. It is for this reason that we
consider that a plea of a bar under Order
2 Rule 2, Civil Procedure Code can be
established only if the defendant files in
evidence the pleadings in the previous
suit and thereby proves to the Court the
identity of the cause of action in the two
suits........."
13. So essentially, Gurubux Singh (Supra) dwells
upon the conditions necessary for application of the
bar under Order II Rule 2 of C.P.C. There is no quarrel
with the proposition laid down in Gurubux Singh
(supra), but the question raised before this Court is
slightly different inasmuch as it relates to the
permissibility of taking the plea of bar under Order II
Rule 2 C.P.C. at a subsequent stage if not taken
earlier.
14. In the judgments cited by Mr. Mishra particularly
the case of Rikob Das A Oswal (supra), the Apex
Court held that the plea of bar under Order 2 Rule 2 of
C.P.C. is a technical plea which has to be pleaded and
satisfactorily established and further that if such plea
is not taken, the Court should not suo motu decide the
plea. In Dalip Singh (supra), the Apex Court held that
the plea of applicability of Order II Rule 2 of C.P.C. and
the subsequent suit being barred was not taken by the
appellant in his written statement filed in response to
the notice of the suit nor any issue framed on the
point;
"..... We need not examine the merit of
the case as we have held that in the
absence of pleadings or the issue
regarding the bar of Order 2 Rule 2 of
C.P.C. in filing the suit, the appellant
cannot be permitted to raise such a
plea."
15. Thus, in the absence of specific pleading by
Defendant No.1 in its written statement of the suit
being barred by Order II Rule 2 of C.P.C. nor the same
being agitated before the First Appellate Court, cannot
be permitted to be raised for the first time before this
Court.
16. For the foregoing reasons therefore, this Court
finds that the appeal is based on untenable premises
and therefore, cannot be entertained.
17. In the result, the appeal fails and is therefore,
dismissed but in the circumstances, without any cost.
..................................
(Sashikanta Mishra)
Judge
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.R.-CUM-SR.SECRETARY
Reason:Ashok Kumar Behera
Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Jul-2023 17:22:21
