Orissa High Court
Kailash Chandra Rout And Others vs Tanuja Nanda And Others .... Opp. ... on 28 November, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Nov-2023 10:32:30
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.1407 OF 2023
Kailash Chandra Rout and others .... Petitioners
Mr. Susanta Kumar Dash, Advocate
-versus-
Tanuja Nanda and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 28.11.2023
01. 1. This matter is taken up through hybrid mode.
2. Order dated 16th August, 2023 (Annexure-3) passed by
learned District Judge, Jajpur in RFA No.44 of 2023 is under
challenge in this CMP, whereby an application filed by the
Petitioners for grant of leave to prosecute the appeal, has been
rejected and consequently, the appeal was dropped.
3. It is submitted by Mr. Dash, learned counsel for the
Petitioner that the Plaintiffs filed the suit claiming right, title and
interest over the suit properties and to declare their tenancy over the
suit land through uninterrupted possession and for other
consequential and ancillary relief. It is their case that the lease was
granted in their favour by Jagannath Road Fund, which is a trust.
During consolidation operation, title of the Plaintiffs was declared.
CS No.25 of 1994 was disposed of vide judgment dated 28th
October, 2022 and the decree dated 5th November, 2022
respectively declaring their right and title. During pendency of the
suit, the Petitioners had filed an application under Order I Rule 10
CPC to be impleaded as parties. But due to outbreak of Covid-19,
they could not take step and the suit was decreed in favour of the
Plaintiffs. The Petitioners do not have any personal interest over
// 2 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Nov-2023 10:32:30
the suit property. They had sought to be impleaded as parties to the
suit and also filed the leave application to prosecute the appeal only
to protect the public property.
4. Mr. Dash, learned counsel for the Petitioners also drew
attention of this Court to Article 51-A of the Constitution of India
and submits that every citizen has a right to protect the public
property. Learned appellate Court, in a slipshod manner, dismissed
the leave application holding that the property has been settled in
favour of the Plaintiffs vide order dated 29th December, 1998 in a
consolidation proceeding. The Plaintiffs claimed that the property
leased out in favour their favour by Jagannath Road Fund. Thus,
they could not have sought for a relief to declare their right, title
and interest over the suit property by adverse possession, which are
mutually destructive. These aspects are required to be considered in
the appeal. Hence, the Petitioners should have been given an
opportunity of prosecute the appeal by granting leave. Learned
appellate Court at the threshold dismissed the petition stating that
the appeal is not maintainable in view of the settlement of the land
in a consolidation proceeding. Since a vital question with regard to
the protection of the public property is involved and the public
authorities are not taking any step to protect the property, the
Petitioners should have been given the opportunity to prosecute the
appeal. Hence, he prays for setting aside the impugned order under
Annexure-3.
5. Considering the submission made by learned counsel for
the Petitioners and on perusal of record, it appears that CS No.25 of
1994 was filed for declaration of right, title and interest over the
suit property in which learned Senior Civil Judge, Chandikhole
// 3 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Nov-2023 10:32:30
vide his judgment and decree dated 28th October, 2022 and 5th
November, 2022 respectively decreed the suit on the ground that
the suit land was directed to be recorded in the name of the
Petitioners by the consolidation authority vide order dated 29th
December, 1998. Since the consolidation authorities have already
passed an order declaring the title of the Plaintiffs, a suit is not
maintainable in view of the Section 51 of the Orissa Consolidation
of Holding and Prevention of Fragmentation of Land Act, 1975 (for
brevity 'the Act'). Since a suit is not maintainable in view of the
aforesaid provision, the Appellant cannot maintain the appeal.
Thus, no fruitful purpose will be served in granting the leave to the
Petitioners to prosecute the appeal.
6. Thus, this Court finds that learned appellate Court has
committed no error in rejecting the application for grant of leave to
the Petitioners to file and prosecute RFA No.44 of 2023.
7. Accordingly, the CMP is dismissed.
8. It is, however, observed that dismissal of the CMP shall not
be a bar for the Petitioners to work out their remedy in accordance
with law, if any available.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
Rojalin
