Prafulla Ch. Panigrahi & Another vs Prafulla Kumar Panda & Others
2025 Latest Caselaw 6574 Ori

Orissa High Court

Prafulla Ch. Panigrahi & Another vs Prafulla Kumar Panda & Others on 3 April, 2025

                          ORISSA HIGH COURT : CUTTACK

                              S.A. No.128 of 1994

            In the matter of an appeal under Section 100 C.P.C, 1908.

                                     ***

Prafulla Ch. Panigrahi & Another ... Appellants.

-VERSUS-

Prafulla Kumar Panda & Others ... Respondents.

Counsel appeared for the parties:

For the Appellants : Mr. S.K. Patnaik, Advocate.

For the Respondents : Mr. G.K. Mishra, Advocate.

Mr. G. Mohanty, Standing Counsel

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 11.03.2025 :: Date of Judgment : 03.04.2025

J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This 2nd Appeal has been preferred against the reversing

Judgment.

2. The appellants in this 2nd Appeal were the defendant

Nos.1 and 2 before the Trial Court in the suit vide T.S. No.3 of

1984 and respondent Nos.1 and 2 before the 1st Appellate

Court in the 1st Appeal vide T.A. No.8 of 1990.

The respondent No.1 in this 2nd Appeal was the sole

plaintiff before the Trial Court in the suit vide T.S. No.3 of

1984 and appellant before the 1st Appellate Court in the 1st

Appeal vide T.A. No.8 of 1990.

The respondent Nos.2 to 6 in this 2nd Appeal were the

defendant Nos.3 to 7 before the Trial Court in the suit

vide T.S. No.3 of 1984 and respondent Nos.3 to 7 before the

1st Appellate Court in the 1st Appeal vide T.A. No.8 of 1990.

3. The suit of the plaintiff (respondent No.1 in this 2nd

Appeal) against the defendants (appellants and respondent

Nos.2 to 6 in this 2nd Appeal) was a suit for declaration and

permanent as well as mandatory injunction.

4. The case of the plaintiff in the suit vide T.S. No.3 of 1984

as per the averments made in his plaint was that, the suit

properties were the properties of the State/Government. The

father of the plaintiff i.e. Sarbeswar Panda had been

possessing the suit properties since the year 1963 as the part

of his house and homestead. During the stages of Kistiwari,

Khanapuri and Bujharat in the Hal Settlement operation, the

said suit properties were recorded in favour of the plaintiff.

The defendant Nos.1 and 2 are the close relatives of the

defendant No.6. Due to political rivalry between the plaintiff

and defendant No.6, the defendant No.6 managed to initiate

encroachment proceedings vide Encroachment Case Nos.1

and 2 of 1982-1983 in respect of the suit properties through

the local R.I. illegally against the defendant Nos.1 and 2 and

in that encroachment proceeding, the Tahasildar, Baramba

settled the suit properties in favour of the defendant Nos.1

and 2 on dated 30.03.1983 suppressing the public notice,

without inviting objection and without complying the

principles of natural justice on the basis of false report of the

R.I. about the possession of the defendant Nos.1 and 2 over

the suit properties.

When the plaintiff came to know about the said illegal

settlement of the suit properties in favour of the defendant

Nos.1 and 2, then, he (plaintiff) approached S.D.O., Collector,

R.D.C. & Revenue Minister for setting aside the said illegal

settlement of the suit properties in the name of the defendant

Nos.1 and 2 and also issued statutory notices under Section

80 of the CPC, 1908 to the Collector, and Commissioner

Government of Orissa Revenue Department, Bhubaneswar

and after expiry of the statutory period of the notices, he

(plaintiff) filed the suit vide T.S. No.3 of 1984 against the

defendants praying for declaration that, the settlement of the

suit properties in favour of the defendant Nos.1 and 2 in

Encroachment Case Nos.1 and 2 of 1982-1983 is tainted with

fraud and to declare such settlement as void, illegal and

without jurisdiction and to injunct the defendant Nos.1and 2

permanently restraining them (defendant Nos.1 and 2) from

entering into the peaceful possession of the plaintiff over the

suit properties and to direct the Tahasildar, Baramba

(defendant No.6) to settle the suit properties in the name of

the plaintiff along with other reliefs, to which, he (plaintiff) is

entitled.

5. Having been noticed from the Trial Court in the suit vide

T.S. No.3 of 1984, the defendant Nos.1 and 2 contested the

same by filing their joint written statement denying the

averments made by the plaintiff in the plaint of the plaintiff

taking their stands inter alia therein that, the suit of the

plaintiff is hit and barred under Section 16 of the OPLE Act,

1972. The suit of the plaintiff for injunction simpliciter

without declaration of title is not maintainable. The suit of the

plaintiff is not maintainable for setting aside the settlement of

the suit properties in favour of the defendant Nos.1 and 2,

when the plaintiff has not challenged the order of settlement

of the suit properties made in Encroachment Case Nos.1 and

2 of 1982-1983 before the appropriate forum. The plaintiff

being the third person is not entitled to challenge the

settlement of the suit properties in the name of the defendant

Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-1983

under OPLE Act, 1972.

The specific case of the defendant Nos.1 and 2 was that,

they (defendant Nos.1 and 2) are in peaceful possession over

the suit properties, but the plaintiff has no possession over

the same and on the basis of their long possession over the

suit properties for more than 30 years continuously, the

Tahasildar, Baramba (defendant No.6) has settled the suit

properties in their names in Encroachment Case Nos.1 and 2

of 1982-1983.

The further case of the defendant Nos.1 and 2 was that,

Encroachment Case No.1 of 1982-1983 was booked against

the defendant No.1 in respect of Ac.0.19 decimals of Plot

No.15 and Encroachment Case No.2 of 1982-1983 was

booked against defendant No.2 in respect of Ac.0.10 dec. of

plot No.15. In both the Encroachment Cases, due/proper

proclamations were made as per law and the suit properties

have been settled properly in favour of the defendant No.1 in

respect of Ac.0.19 Decimals and in favour of defendant No.2 in

respect of Ac.0.10 Decimals as per Section 8A of the OPLE

Act, 1972 according to the notification No.1054 dated

14.07.1983 of the Government on payment of 50% market

value thereof by them (defendant Nos.1 and 2). Accordingly,

they (defendant Nos.1 and 2) are the owners and in

possession over the suit properties, but the plaintiff has filed

the vexatious suit against them (defendant Nos.1 and 2) for no

other reason, only in order to harass them. As such, the

plaintiff has no interest in the suit properties. For which, the

suit filed by the plaintiff is liable to be dismissed against them

(defendant Nos.1 & 2).

The defendant Nos.3 to 5 filed their joint written

statement in support of the defendant Nos.1 and 2 for the

dismissal of the suit of the plaintiff.

The Tahasildar and Collector i.e. defendant Nos.6 & 7

also filed their joint written statement stating that, the suit

properties have been settled in Encroachment Case Nos.1 and

2 of 1982-1983 properly in the name of the defendant Nos.1

and 2 on the basis of their long and continuous possession for

more than 30 years as per Section 8A of the OPLE Act, 1972

according to law. For which, the suit of the plaintiff is liable to

be dismissed against them (defendant Nos.6 & 7).

6. Basing upon the aforesaid pleadings and matters in

controversies between the parties, altogether 8 numbers of

issues were framed by the Trial Court in the suit vide T.S.

No.3 of 1984 and the said issues are:

ISSUES

1. Is the suit maintainable?

2. Is the suit barred by the laws of limitation?

3. Is the suit barred for misjoinder of parties?

4. Has the Court jurisdiction and power to try this suit?

5. Is the suit hit by Section 16 of the Orissa Prevention of Land Encroachment Act, 1972?

6. Was the plaintiff in possession of the suit land as claimed by him?

7. Is there any illegality or irregularity in the grant of lease of the suit land by the state in favour of the Defendant No.1?

8. Is the plaintiff entitled to any relief and if so, what?

7. In order to substantiate the aforesaid reliefs sought for

by the plaintiff against the defendants, the plaintiff examined

12 numbers of witnesses from his side including him (plaintiff)

as P.W.3 and relied upon the documents vide Ext.1 to 52 on

his behalf.

On the contrary, in order to nullify/defeat the suit of the

plaintiff, the defendants examined 5 witnesses on their behalf

including the defendant No.1 as D.W.3 and relied upon the

documents vide Ext.A to N from their side.

8. After conclusion of hearing and on perusal of the

materials, documents and evidence available in the record, the

Trial Court answered issue Nos.1,4,7 & 8 against the plaintiff

and in favour of the defendants and basing upon the findings

and observations made by the Trial Court in the issue

Nos.1,4,7 & 8, the Trial Court dismissed the suit of the

plaintiff vide T.S. No.3 of 1984 on contest against the

defendants as per its Judgment and Decree dated 20.07.1990

and 17.08.1990 respectively assigning the reasons that, the

suit properties have been settled in favour of the defendant

Nos.1 and 2 properly as per law after observing all legal

formalities in Encroachment Case Nos.1 and 2 of 1982-1983.

The plaintiff was/is not in possession over the suit properties

at any point of time. For which, the plaintiff is not entitled for

the reliefs sought for by him in his plaint.

9. On being dissatisfied with the aforesaid Judgment and

Decree i.e. dismissal of the suit of the plaintiff vide T.S. No.3

of 1984 passed by the trial court, he (plaintiff) challenged the

same by filing the 1st Appeal vide T.A. No.8 of 1990 being the

appellant against the defendants arraying the defendants as

respondents.

After hearing from both the sides, the First Appellate

Court allowed that 1st Appeal vide T.A. No.8 of 1990 of the

plaintiff and set aside the Judgment and Decree of dismissal

of the suit vide T.S. No.3 of 1984 passed by the Trial Court as

per its Judgment and Decree dated 19.03.1994 and

26.03.1994 respectively and declared that, the order of

settlement of the suit properties made by the Tahasildar,

(defendant No.6) in favour of defendant Nos.1 and 2 in

Encroachment Case Nos.1 and 2 of 1982-1983 is void, illegal,

without jurisdiction and the same does not confer any right

upon them (defendant Nos.1 and 2). So, they (defendant Nos.1

and 2) are permanently restrained from interfering in the

possession of the plaintiff over the suit properties assigning

the reasons that,

"the documents prepared during the stage of the settlement vide Ext.2 at the stage of Yadast are going to show that, the plaintiff is in possession over the suit properties, but the defendant Nos.1 and 2 are not in possession over the same. That apart, no opportunity of hearing has been given to the plaintiff in the Encroachment Case Nos.1 and 2 of 1982-1983 by the Tahasildar (defendant No.6) for passing its final order. Exts.D & E are going to show that, no proclamation was made in the Encroachment Case Nos.1 & 2 of 1982-1983 either on the suit properties or on the suit village or any place which is mandatorily required as per the Rule 15 of the OPLE Act, 1972 and there is no material in the record to show on behalf of the defendants about the fixing up of any date for appearance of the public in the said Encroachment Case Nos.1 & 2 of 1982-1983. Though, the suit properties have been settled in favour of the defendant Nos.1 and 2 on the ground that, they are landless persons, but, in fact they had/have landed properties. For which, the defendant Nos.1 and 2 have managed to settl the suit properties in their names illegally gaining over the defendant Nos.6 & 7 practising fraud."

10. On being aggrieved with the aforesaid Judgment and

Decree passed by the 1st Appellate Court in T.A. No.8 of 1990

in favour of the plaintiff and against the defendant Nos.1 and

2, the defendant Nos.1 and 2 challenged the same by

preferring this 2nd Appeal being the appellants against the

plaintiff and defendant Nos.3 to 7 arraying them as

respondents.

11. This 2nd Appeal was admitted on formulation of the

following substantial question of law i.e.

I. Whether the 1st appellate court Judgment is to be vitiated on account of non- consideration of material evidence and what is the evidentiary value of records prepared by the Settlement Authorities prior to the finalization of the Record of Rights?

12. I have already heard from the learned counsel for the

appellants, learned counsel for the respondent No.1 and the

learned Standing Counsel for the State.

13. In the suit vide T.S. No.3 of 1984, the plaintiff

(respondent No.1 in this 2nd Appeal) had prayed for setting

aside the settlement of the suit properties in the name of the

defendant Nos.1 and 2 by the defendant No.6 in

Encroachment Case Nos.1 and 2 of 1982-1983 on the ground

of non-compliance of the mandatory provisions of the OPLE

Act 1972 and Rules thereof and for non-giving any

opportunity of being heard to the plaintiff in the said

Encroachment Case Nos.1 & 2 of 1982-1983.

Though, the learned Trial Court through a cryptic

observation in issue Nos.1,4 & 5 held that, the suit properties

have been properly settled in the names of the defendant

Nos.1 and 2 in Encroachment Case Nos.1 and 2 of 1982-

1983 after complying all the statutory provisions and Rules of

the OPLE Act and Rules thereof, but the 1st Appellate Court

discarded the same holding that, for settlement of the suit

properties in Encroachment Case Nos.1 and 2 of 1982-1983

in the names of the defendant Nos.1 and 2, the mandatory

statutory provisions in the OPLE Act, 1972 and Rules thereof

have not been duly complied with

14. Now, the question arises, whether the Civil Court has

jurisdiction to set aside the final order of settlement of

the suit properties in favour of the defendant Nos.1 and

2 passed by the statutory tribunal under OPLE Act, 1972

in Encroachment Case Nos.1 and 2 of 1982-1983 on the

ground of non-compliance of the mandatory provisions of

law?

On this aspect, the propositions of law has already been

clarified by the Hon'ble Courts and Apex Court in the ratio of

the following decisions:

I. In a case between Sri Bharat Jena & Three Others Vs. Sri Narayan Jena & Others reported in 2014 (Supp.-II) OLR 132, "Even if a statute bars the jurisdiction of the Civil Court, any order passed under the provisions of such statue is always open to be questioned in a civil suit on the ground of none following the procedure laid down in the Act or passing of orders which are not contemplated under the Act." (Para No.4).

II. In a case between Jagannath @ Jagamohan Dharua & Others Vs. Prithwiraj Singh Dharua & Others reported in 2006 (I) CLR 182, "Civil Court would have jurisdiction to examine a case where the statutory tribunal has not complied with the provision of the Act or has not acted in conformity with the fundamental principles of judicial procedure or the order is unfair, capricious or arbitrary. It is however, to be noted that even though Civil Court would have jurisdiction in the above noted situation, yet it cannot substitute its own decision for that of the tribunal but would simply give a direction to dispose of the case in accordance with law. In other words, even if the tribunal decides facts wrongly while exercising its legal jurisdiction, Civil Court cannot interefere with the finding." (Para No.7) III. In a case between Smt. Champabati Devi Vs. Duryodhana Swain (dead) & after him Ashok Kumar Swain & Others reported in 102 (2006) CLT 279, "If the statutory Tribunal acts in excess of its jurisdiction or does not act in conformity with the statutory provisions and procedures or passes unfair, arbitrary or capricious order, then Civil Court as Court of general jurisdiction can assume jurisdiction to decide the legality of the order of Tribunal.

IV. In a case between Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna reported in AIR 1997 (SC) 3082 that, where the fundamental principles of procedure are not followed by the tribunal for passing an impugned order, in that case, the jurisdiction of the civil Court is not

ousted/excluded to entertain a suit for examination of a limited aspect i.e. whether the fundamental Principles of procedure were followed or not by the statutory tribunals for passing the impugned order. (Para No.15).

15. When, as per the discussions and observations made

above, the findings and observations made by the Trial Court

in support of the settlement of the suit properties by the

defendant No.6 (Tahasildar, Baramba) in favour of the

defendant Nos.1 and 2 (appellants in this 2nd Appeal) in

Encroachment Case Nos.1 and 2 of 1982-1983 are cryptic

and when the Judgment and Decree passed by the 1st

Appellate Court for setting aside the order of settlement of the

suit properties in the name of the defendant Nos.1 and 2 in

Encroachment Case Nos.1 and 2 of 1982-1983 for non-

compliance of mandatory statutory provisions of the OPLE

Act and Rules thereof are clearly in detail, then, at this

juncture, by applying the principles of law enunciated in the

ratio of the aforesaid decisions of the Hon'ble Courts and Apex

Court, I find no justification under law to be disagreed with

such findings and observations made by the 1st Appellate

Court.

When it is the settled propositions of law that, when the

civil court comes to a conclusion that, the statutory tribunal

has not discharged its duties in confirmtiy with the

fundamental principles of the Acts and Rules, then, in such a

situation, the Civil Court has only power to direct the tribunal

to dispose of the case afresh in accordance with the law after

setting aside the Order of settlement made by the statutory

tribunal, then, at this juncture, the Civil Court has only

jurisdiction to set aside the order of settlement made by the

statutory tribunal and to remit back the matter to the

statutory tribunal for its fresh decision in accordance with law

after complying the mandatory provisions of the Act and Rules

thereof.

For which, the entire Judgment and Decree of the 1st

Appellate Court cannot be sustainable under law. Because,

the learned 1st Appellate Court has set aside the order of

settlement of the suit properties made by the defendant No.6

(Tahasildar, Baramba) in Encroachment Case Nos.1 and 2 of

1982-1983 in favour of the defendant Nos.1 & 2 on the

ground of non-compliance of the mandatory statutory

provisions of OPLE Act and Rules thereof without remitting

back the matter to the statutory tribunal to decide the

Encroachment Case Nos.1 and 2 of 1982-1983 afresh as per

law after complying the mandatory statutory provisions of the

OPLE Act, 1972 & Rules thereof.

So, in view of the above discussions and observations

made above, there is some merit in the 2nd Appeal of the

appellants (defendant Nos.1 and 2). The same must succeed

in part.

In result, the appeal filed by the appellants (defendant

Nos.1 and 2) is allowed in part.

The impugned Judgment and Decree passed by the Trial

Court in the suit vide T.S. No.3 of 1984 as well as by the 1st

Appellate Court in T.A. No.8 of 1990 are set aside in part on

contest but without cost.

16. The suit be and the same filed by the plaintiff

(respondent No.1 in this 2nd Appeal) vide T.S. No.3 of 1984 is

decreed in part on contest against the defendants.

17. The matter i.e. Encroachment Case Nos.1 and 2 of 1982-

1983 is remitted back to the defendant No.6 (Tahasildar,

Baramba) to decide the said Encroachment Case Nos.1 and 2

of 1982-1983 afresh as per law in conformity with the OPLE

Act, 1972 and Rules thereof after giving opportunity of being

heard to the parties of the suit vide T.S. No.3 of 1984 or their

successors if any, and directed to dispose of the

Encroachment Case Nos.1 and 2 of 1982-1983 as

expeditiously as possible within a period of 4 (four) months

from the date of communication of this Judgment.

18. Registry is directed to communicate this Judgment to the

Tahasildar, Baramba immediately.

(ANANDA CHANDRA BEHERA) JUDGE

High Court of Orissa, Cuttack 03 .04. 2025// Rati Ranjan Nayak Sr. Stenographer

Cuttack, India.

Date: 04-Apr-2025 14:13:12