Orissa High Court
(In The Matter Of An Appeal Under ... vs Kishori Bagh And Others on 10 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.50 of 1986
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Amulya Paruani .... Appellant
-versus-
Kishori Bagh and others .... Respondents
Appeared in this case:-
For Appellant : Mr. N.C. Pati, M. Mishra, S.
Mishra, L.K. Mishra, S.K. Nanda,
A.K. Nanda, N. Singh, B. Das,
Advocae
For Respondents : None
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 18.10.2023 / date of judgment :10.11.2023
A.C. Behera, J. This 2nd appeal has been preferred against the confirming
judgment.
The appellant and the respondents were the plaintiff and
defendants in the suit vide T.S. No.49 of 1971 and they were the
appellant and respondents respectively in the 1st appeal vide T.A.
No.4/15 of 1975-84.
The suit vide T.S No.49 of 1971 was a suit for declaration and
confirmation of possession but in alternative recovery of possession and
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permanent injunction, if, she (plaintiff) found to be dispossessed from the
suit lands during the pendency of the suit.
2. The case of the plaintiff in the suit vide T.S. No.49 of 1971 was
that, her father Nitya had two wives, namely, Mayabati and Kajalbati.
The mother of the plaintiff is Mayabati. The mother of the
defendant nos.1 and 2 is Kajalbati. Defendant no.3 is the son of
defendant no.1. The defendant nos4, 5 and 6 are the sons of defendant
no.2.
When the two wives of Nitya, i.e., Mayabati and Kajalbati did not
pull well, for which, Mayabati (mother of the plaintiff) filed a suit for
partition vide C.S. No.39 of 1938. That, partition suit vide C.S. No.39 of
1938 was ended in compromise. In the compromise decree of that suit
vide C.S. No.39 of 1938, the suit properties along with some other
Bhogra lands were allotted into the share of Mayabati. Mayabati had
given in marriage to her daughter, i.e., to plaintiff with one Kanduru
Parua. After marriage of the plaintiff, she (plaintiff) resided in her
parent's house with her husband. So, Mayabati and her daughter
(plaintiff) possessed the suit properties. On the basis of allotment of the
suit properties into the share of Mayabati, she (Mayabati) became the
exclusive owner over the suit properties. But, in a Bhogra Conversion
Proceeding, the suit properties were erroneously recorded in the name of
defendant nos.1 and 2, though in fact, Mayabati was the owner of the suit
properties. On the strength of such wrong recording of the suit properties
in the name of defendant nos.1 and 2 as per the order of Bhogra
Conversion Proceeding, they (defendant nos.1 and 2) sold some of the
suit properties to one Nandalal Mishra in the year 1943-1944. When
Mayabati expired in the year 1970 leaving behind the plaintiff as her only
daughter and sole successor, the suit properties devolved upon the
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plaintiff and the plaintiff possessed the suit properties being the exclusive
owner thereof. When the defendants created disturbances in the
possession of the plaintiff over the suit properties in the year 1971, for
which, she (plaintiff) approached the civil court by filing the suit vide
T.S. No.49 of 1971 against the defendants praying for declaration of her
right, title and interest over the suit properties and for confirmation of her
possession thereon and in alternatively for recovery of possession and
permanent injunction.
3. Having been noticed from the court in T.S. No.49 of 1971, the
defendant nos.6 and 7 were set ex parte.
The defendant nos.1 to 5 filed their written statement challenging
the suit of the plaintiff without disputing the relationship of the plaintiff
and defendants stated in the plaint by the plaintiff taking their stands that,
Mayabati had not filed suit for partition vide C.S. No.39 of 1938. That,
C.S. No.39 of 1938 filed by Mayabati was a suit for her maintenance. For
which, some Bhogra lands were given to her towards her maintenance
only. But, the defendant nos.1 and 2 are all along in possession over the
suit properties. In the settlement record of rights published in the year
1936, the suit properties were recorded in the name of defendant nos.1
and 2 jointly. Thereafter in Milan Khasara operation, during Bhogra
Conversion Proceeding, the suit properties were entered in the demand
list in the names of defendant nos.1 and 2 in view of their long and
continuous possession over the suit properties. To which, Mayabati
challenged by filing a objection case vide P.R. No.216 of 1953 before the
Bogra Conversion Officer for recording the suit properties in her name.
But, in that Bhogra Conversion Proceeding vide P.R. No.216 of 1953, the
claim of Mayabati was rejected, for which, Mayabati preferred an appeal
before the Revenue Commissioner challenging the final order passed
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against her in that Bhogra conversion proceeding, but that appeal of
Mayabati was disallowed/dismissed. Thereafter, Mayabati remained
silent without challenging the dismissal order passed by the Revenue
Commissioner in dismissing her appeal and accepted the final judgment
of dismissal of her appeal passed by the Revenue Commissioner.
According to the defendants, Mayabati was never in possession over the
suit properties and Mayabati was also not paying rent of the suit
properties. Only the defendant nos.1 and 2 were paying rent of the suit
properties. So, the plaintiff being the daughter of Mayabati had/has no
interest and possession over the suit properties. Therefore, the suit of the
plaintiff is not maintainable. The suit of the plaintiff is also barred by
limitation. The plaintiff has no cause of action to file the suit. So, the suit
of the plaintiff is liable to be dismissed.
4. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether five numbers of issues were framed by the
trial court in T.S. No.49 of 1971 and the said issues are:-
ISSUES
i. Did the plaintiff mother get the suit lands as per share in the
shit for partition?
ii. Is the plaintiff cause of action?
iii. Is the suit maintainable?
iv. Is the suit barred by time?
v. To what relief, if any, is plaintiff entitled?
5. In order to substantiate above prayers of the plaintiff in T.S. No.49
of 1971, she examined altogether five numbers of witnesses including her
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as P.W.5 and proved some documents on her behalf vide Exts.1 and 2.
On the contrary, the contesting defendant nos.1 to 5 examined five
witnesses from their side including the defendant no.1 as D.W.5 and
relied upon several documents on their behalf vide Exts.A to K.
6. After conclusion of hearing and on perusal of the materials,
evidence and documents available in the record, the trial court answered
all the issues against the plaintiff and in favour of the defendants.
7. Basing upon the findings and observations made by the trial court
in the issues against the plaintiff, the trial court dismissed the suit of the
plaintiff on contest against the defendant nos.1 to 5 and ex parte against
defendant nos.6 and 7 vide its judgment and decree assigning the reasons
that, Mayabati(mother of the plaintiff) was not allotted with the suit
properties towards her share in the suit vide C.S. No.39 of 1938.
Because, the said suit vide C.S. No.1938 was not a suit for partition, but a
suit for maintenance. As the final judgment passed in an appeal before
the Revenue Commissioner in the year 1954 in a Bhogra Conversion
Proceeding against Mayabati in respect of the suit properties has already
been reached in its finality due to non-challenge of the same by Mayabati
(mother of the plaintiff) before any higher forum, for which, plaintiff has
no interest over the suit properties. Therefore, the suit of the plaintiff is
barred by limitation.
8. On being dissatisfied with the aforesaid judgment and decree of
dismissal of the suit vide T.S. No.49 of 1971 passed by the trial court, the
plaintiff preferred 1st appeal vide Title Appeal No.4/15 of 1975-84
against the defendants by arraying them (defendants) as respondents.
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9. After hearing from both the sides, the 1st appellate court dismissed
to that first appeal of the appellant accepting final findings made by the
trial court in T.S. No.49 of 1971 against the plaintiff.
10. On being aggrieved with the judgment and decree of the dismissal
of the 1st appeal vide T.S. No.49 of 1971 of the plaintiff, she (plaintiff)
preferred this 2nd appeal being the appellant against the defendants by
arraying them (defendants) as respondents.
This 2nd appeal was admitted on the formation of substantial
questions of law, i.e., (i) on the finding of the courts below that, the land
was given to Mayabati towards maintenance, whether Section 14(1) of
the Hindu Succession Act, 1956 would apply and she would be absolute
owner? (ii) whether the finding on the question of limitation is justified
or not?
11. I have already heard from the learned counsel for the appellant and
respondents.
12. It is the undisputed case of the parties that, the suit properties were
settled in the name of the defendant nos.1 and 2 as per the order passed in
a Bhogra Conversion Proceeding vide P.R. No.216 of 1953 after due
adjudication of the objection raised by the mother of the plaintiff, i.e.
Mayabati.
The said order of settlement of the suit properties in the name of
defendant nos.1 and 2 has already been reached in its finality due to the
confirmation of that order of settlement of the suit properties, passed in
the Bhogra Conversion proceeding vide P.R. No.216 of 1953 by the
Revenue Commissioner in the year 1954 in an appeal preferred by the
mother of the plaintiff i.e. Mayabati.
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13. The law relating to the settlement of Bhogra lands and the effect of
such settlement through Bhogra Conversion Proceeding has already been
clarified in the ratio of the following decisions:-
(i) 2007(II) CLR-477 : Muralidhar Naik vrs. State of
Orissa and others--Bhogra Land --"Bhogra lands to be
settled with occupancy right thereon, only if a person is in actual
possession of the same. Held, order of settlement passed in the
Bhogra Conversion Proceeding having not been varied by any
competent authority till date, for which, the settlement authorities
rightly recorded the land in the name of O.P. Nos.5 to 23."
(ii) 2021(II) CLR-146 : Halayudha Satpathy and
others vrs. Manoranjan Satpathy----Bhogra Lands--
"After vesting of Bhogra lands in the State, the said suit lands were
settled by Collector in favour of the defendants in the Bhogra
Proceedings on 04.06.1962 with effect from 14.04.1956 followed by
the grant of raiyat patta. Appeal filed by the plaintiff against the
Bhogra Conversion order stood dismissed by the Revenue Divisional
Commissioner. Suit filed by the plaintiff for declaration of title,
confirmation of possession and injunction. According to the plaintiff,
he continued in possession of the suit lands as before stating that, the
settlement record prepared in the name of the defendants was wrong.
Held, civil court cannot sit over the final order passed in the Bhogra
Conversion Proceeding, unless there is challenge in the suit that, the
statutory authorities under Bhogra Conversion Proceeding have
acted unfairly, arbitrarily or capriciously and without exercising the
powers within the ambit of the statute."
Here in this suit at hand, when the suit lands have been settled as
per the order passed in the Bhogra Conversion Proceeding after due
adjudication of the objection raised by the mother of the plaintiff, then, at
this juncture, in view of the propositions of law enunciated in the ratio of
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the aforesaid decisions, the said settlement of the suit lands in favour of
the defendant nos.1 and 2 as per the orders passed in Bhogra Conversion
Proceedings cannot and shall not be un-settled through the suit filed by
the plaintiff. Because, on the basis of the settlement of the suit lands as
per the orders passed in Bhogra Conversion Proceeding in favour of the
defendant nos.1 and 2 followed by the grant of raiyat patta in their
favour, the right, title, interest of the defendant nos.1 and 2 over the suit
lands(properties) have already been created. For which, Section 14(1) of
Hindu Succession Act, 1956 has become inapplicable. Likewise, due to
non-challenge to the final judgment of dismissal of the appeal passed
against the mother of the plaintiff by the Revenue Commissioner in the
year 1954, in the Bhogra Conversion appeal before any statutory higher
forums thereof and filing of the suit by the plaintiff in the year 1971, the
suit of the plaintiff is naturally barred by law of limitation. For which, the
findings and observations made by the trial court and 1st appellate court
in dismissing the suit of the plaintiff, (appellant) and her 1st appeal cannot
be held as erroneous. So there is no merit in the appeal of the appellant.
Therefore, the appeal of the appellant is to be failed.
14. In the result, the appeal filed by the appellant is dismissed on
contest, but without cost.
15. The Judgment and decree of dismissal of the suit vide T.S No.49
of 1971 passed by the trial court and confirmation of the same by the 1st
Appellate Court in T.A. No.4/15 of 1975-1984 are hereby confirmed.
Signature Not Verified
Digitally Signed
( A.C. Behera )
Signed by: JAGABANDHU BEHERA
Designation: Secretary-in-Charge
Judge
Reason: Authentication Orissa High Court, Cuttack
Location: OHC, CUTTACK The 10th of November, 2023/ Jagabandhu, P.A.
Date: 14-Nov-2023 14:21:19
