Nitai Sikari vs Samarjit Haldar & Others
2023 Latest Caselaw 11802 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK
                           R.S.A. No.52 of 2023

          In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment dated 27.10.2022, passed by the
    learned Additional District Judge, Umarkote, Nabarangpur in R.F.A. No.01
    of 2018 confirming the the judgment and decree dated 19.05.2018 &
    18.06.2018 respectively passed by the learned Senior Civil Judge, Umarkote
    in C.S No.56 of 2015.
                                      ----

         Nitai Sikari                          ....            Appellant


                                    -versus-

         Samarjit Haldar & Others              ....         Respondents



                  Appeared in this case by Hybrid Arrangement
                           (Virtual/Physical Mode):


          For Appellant-            M/s. T.K. Mishra, J. Sahoo, S.K. Pattnaik.
                                    (Advocates)

          For Respondents-          Mr. Adhiraj Mohanty, S. Dash, K. Gain
                                    (Advocate for R-1)
    CORAM:
    MR. JUSTICE D.DASH

DATE OF HEARING :21.09.2023 :: DATE OF JUDGMENT:29.09.2023 D.Dash,J. The Appellant, by filing this Appeal under section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), has challenged the Judgment and decree dated 27.10.2022 passed by the learned Additional District Judge, Umarkote in RFA No.01 of 2018.

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The Respondent No.1 as the Plaintiff had filed Civil Suit No.56 of 2015 in the Court of Senior Civil Judge, Umarkote arraigning this Appellant and Respondent No.2 to 9 as the Defendants. The suit is for declaration of right, title and interest with the recovery of possession of the land under Plot No.474/871 and 472/872 assigned with Khata No. 90/474 to an extent of area of Ac.0.1 cent out of Ac 0.34 cents and Ac 0.1 cent out of Ac 0.2 cents respectively as described in Schedule 'A' of the plaint in his favour with further prayer to pass a preliminary decree in respect of the land measuring Ac.0.36 cents under Khata No.90/474 better described in Schedule 'A' of the plaint.

The suit was partly decreed by declaring the right, title, interest of the Respondent No.1 over Schedule 'A' land and for recovery of possession of the same in favour of the Respondent No.1 (Plaintiff).

The Respondent No.2 and 3 (Defendant No.2 & 3) being aggrieved and dissatisfied by the said part decree passed in the suit filed by the Respondent No.1 as the Plaintiff instead of the decree as prayed for, had carried the Appeal under section 96 of the Code. The Appeal has been dismissed and thereby, the judgment and decree passed by the Trial Court aforestated have been confirmed. The instant Second Appeal has been filed by the Appellant, who was the Defendant No.3 before the Trial Court.

2. For the shake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred as has been arraigned before the Trial Court and as per the position assigned to them therein.

3. Plaintiff's case is that the land in Schedule 'B' of the plaint originally stood recorded jointly in the name of Anand Sikari and Gouranga Sikari. It is stated that they having partitioned the properties, the eastern portion of the

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Schedule 'B' fell in the share of Anand and the western portion went to the share of Gouranga. It is further stated that the share of Anand being further partitioned amongst his successors. Schedule 'A' land came to the share of Dhiman Sikari (Defendant No.2). The land under Schedule 'A' while under the exclusive and peaceful possession of Defendant No.2, he sold the same to the Plaintiff by registered sale deed dated 24.01.2013. The Plaintiff being delivered with the possession of the said land, has been continuing to possess the same as its rightful owner. The sale deed being executed by Defendant No.1 & 2 and registered, the scribe was entrusted with the duty to collect the original document and hand over the same to the Plaintiff. But when in the month of August, 2015, the Plaintiff asked the scribe about the original sale deed, he disclosed that the sale deed had been taken by the defendants. The Plaintiff, therefore, issued a legal notice to Defendant No.1 & 2. Before that in the month of July, 2015, the Defendant No.1 & 2 in connivance with the other Defendants, constructed stalls over the portion of schedule 'A' land adjoining the road by dispossessing the Plaintiff from that portion of land. The Plaintiff therefore filed the suit seeking the reliefs as aforestated.

4. The Defendant No.1 & 2 contested the suit by filing the written statement. They stated that the suit land with other lands of the Defendants are continuing to be their joint properties and there was never any partition in the meets and bounds. So they stated that they having no exclusive alienable right over any part of the land by such execution of the sale deed by then, no right, title interest in the property covered under the sale deed have flowed to the hand of the Plaintiffs. They stated to have constructed the stalls over the land over which they have the right, title, interest and the Plaintiff have no right, title to challenge the same. They also asserted that the relief of partial partition as prayed for by the Plaintiff is not permissible both on fact and law. Thus they urged for dismissal of the suit.

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5. On the above rival pleadings, the Trial Court having framed as many as 11 issues, has answered those as under:-

i. The execution of registered sale deed dated 24.11.2023 (Ext.1) under which Plaintiff claims to have acquired right, title, interest over the lands which are the subject matter of the suit has been duly proved.

ii. The Defendant No.2, who is the vendor in the said sale deed (Ext.1) is stopped from denying the fact that the joint family property was not partitioned and the joint family status was not shivered/separated prior to execution of Ext.1.

Thus in view of the partition of the joint family properties prior to the execution of the registered sale deed (Ext.1), the challenge as to the sale made by the Defendant No.2 in favour of the Plaintiff, who is an outsider, being not permissible in the eye of law, is not correct.

The Trial Court held that the Plaintiff is thus entitled to get the declaration of his right, title, interest over Schedule 'A' land and also a mandatory injunction as prayed for.

6. The First Appellate Court being moved by, the Defendant No.1 & 2 has affirmed the findings of the Trial Court and dismissed the said Appeal by confirming the judgment and decree passed by the Trial Court in the suit filed by the Plaintiff.

7. Heard learned Counsel for the Appellant.

8. Keeping in view the submissions made, the judgments passed by the Courts below being perused, it is seen that the Plaintiff suit was with the prayer to pass a decree for declaration of his right, title, interest over the land described in Schedule 'A' land and for recovery of possession of the same in his favour as also to pass a preliminary decree over the land described in Schedule 'B' of the plaint. The Trial Court has passed the following order:-

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i. The suit of the Plaintiff is partly decreed on contest against defendant no.1 & 2 and ex-parte against defendant No.3 to 9.

ii. The right, title and interest of the Plaintiff over 'A' schedule land is hereby declared.

iii. The plaintiff is entitled to get recovery of possession over 'A' schedule land by removing the structure therein.

iv. The defendant no.1 & 2 are directed to vacate the 'A' schedule land and handed over the possession to the plaintiff within four months from the date of order, otherwise the plaintiff is at liberty to realize the same through the process of law.

9. Being aggrieved and dissatisfied with the said judgment and decree passed by the Trial Court, the Defendant No.1 & 2 filed the First Appeal arraigning the Plaintiff as the sole Respondent therein. The said Appeal at the instance of Defendant No.1 & 2 has been dismissed. The judgement and decree passed by the Trial Court in respect of Schedule 'A' land in favour of the Plaintiff have been confirmed. In such state of affair, a question arises as to whether the present Second Appeal at the instance of the Defendant No.3 is maintainable.

10. In the suit filed by the Plaintiff, this Defendant No.3 had received the notice. On receiving the notice, the Defendant No.3 had not appeared to contest the same right from the beginning till the end. Thereafter, the Defendant No.3 has also not made any move to get the judgment and decree passed ex-parte against him, set aside or modified by carrying the First Appeal in challenging the said judgment and decree, which has been passed ex-parte against him. During pendency of the suit, the Defendant No.3 has completely remained silent and thereafter has also surrendered to the said

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judgment and decree passed by the Trial Court for all these period from the year 2018 onwards. Now after the dismissal of the First Appeal, filed by the Defendant No.1 & 2 when the judgment and decree passed by the Trial Court have been confirmed by the First Appellate Court, this Second Appeal under section 100 of the Code at the instance of the said Defendant No.3 is squarely not maintainable.

11. In the result, the Appeal stands dismissed. There shall be, however no order as to cost.

(D.Dash), Judge

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 04-Oct-2023 12:42:43

R.S.A. No.52 of 2023