Harekrushna Naik And Others vs San Padma Charan Naik And
2023 Latest Caselaw 2331 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                             R.S.A No.256 of 2014

            Harekrushna Naik and others           ....            Appellants

                                               M/s. S.R.Pattnaik,
                                               Advocate


                                   -versus-
            San Padma Charan Naik and             ....          Respondents
            another
                                               Mr. A.Mishra, Advocate


                     CORAM:

                               JUSTICE SASHIKANTA MISHRA
                                      ORDER

22.3.2023.

Order No.

11. 1. This matter is taken up through hybrid mode.

2. Heard learned counsel for the Appellants and learned counsel

appearing for the Respondents.

3. The challenge in the appeal is to the judgment and decree

dated 13th January, 2014 and 22nd January, 2014 respectively

passed by learned Addl. District Judge, Rairangpur in R.F.A.

No.28/2012 whereby the said appeal was dismissed.

// 2 //

4. The facts, relevant only to decide the present appeal are that

the present Respondents being plaintiffs had filed T.S.

No.59/2005 in the Court of learned Civil Judge (Sr. Division),

Rairangpur for partition of the 'B' Schedule land. The trial

Court, after considering the oral and documentary evidence on

record decreed the suit preliminarily by declaring that each of

the plaintiffs have 1/4th share of the suit land while the

defendants together have 1/2 share of the suit land. Being

aggrieved, the defendants preferred the aforementioned appeal

in the first appellate Court.

5. The learned First Appellate Court rendered findings

independently in respect of the issues framed by the trial Court

of which, Issue No.2 read as follows:

"(2) Have the plaintiffs cause of action to file this suit."

6. After deciding the other issues, the First Appellate Court

held under Issue Nos.1,2 and 8 that the suit is maintainable and

the plaintiffs have no cause of action to file the same. On such

findings the appeal preferred by the defendants was dismissed

// 3 //

on contest thereby confirming the preliminary decree passed by

the trial Court.

7. Mr. S.R.Pattnaik, learned counsel appearing for the

Appellants, submits that if it is held that the plaintiffs did not

have any cause of action to file the suit, the appeal should have

been allowed by reversing the order passed by the trial Court.

Therefore, the finding of the First Appellate Court cannot be

sustained in the eye of law.

8. Mr.A.Mishra, learned counsel appearing for the Respondent,

on the other hand, submits that the same is most probably a

typographical error since the First Appellate Court has

otherwise given its independent findings on each of the issues.

9. This Court is of the view that once it is held that the

plaintiffs did not have any cause of action to file the suit, the

appeal could not have been dismissed thereby confirming the

preliminary decree passed in the suit. In any event, the finding

as above appears to be incongruous and inconsistent. Since this

Court finds that the appeal was preferred by the defendants on

// 4 //

several valid grounds, it was incumbent upon the First

Appellate Court to have considered the same on its own merit.

10. For the foregoing reasons therefore, this Court is of the

view that the impugned judgment cannot be said to have been

correctly passed for which the same warrants interference.

Resultantly, the appeal is allowed. The impugned judgment and

decree are hereby set aside. The matter is remanded to the First

Appellate Court to hear the appeal afresh and dispose of the

same within a period of three months.

                                              (Sashikanta Mishra)
AKB                                                  Judge