Orissa High Court
Raghunath Mishra vs Kailash Chandra Behera And on 16 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.17 of 1997
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Raghunath Mishra .... Appellant
-versus-
Kailash Chandra Behera and .... Respondents
others
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. S.D. Das,
Sr.Advocate.
assisted by
Mr. M. Faradish,
Advocate.
For Respondents - Mr. A.K. Mishra,
Advocate.
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :03.04.2025 :: Date of Judgment :16.04.2025
A.C. Behera, J. This second appeal has been preferred against the
confirming judgment.
2. The appellant in this second appeal was the sole plaintiff before the
Trial Court in the suit vide T.S. No.20 of 1983 and appellant before the
First Appellate Court in the First Appeal vide T.A. No.18 of 1989.
The respondents in this second appeal were the defendants before
the Trial Court in the suit vide T.S. No.20 of 1983 and respondents before
the First Appellate Court in the First Appeal vide T.A. No.18 of 1989.
3. The suit of the plaintiff (appellant in this second appeal) before the
Trial Court vide T.S. No.20 of 1983 against the defendants (respondents
in this second appeal) was a suit for eviction.
4. According to the pleadings of the plaintiff, the suit land is A0.14
decimals out of A0.78 decimals of Plot No.4764 under Khata No.1643/4
in ward No.18 of Baripada Municipality described in Schedule 'A' of the
plaint.
As per the averments made in the plaint of the plaintiff, the entire
Plot No.4764 measuring an area A0.78 decimals originally belong to
Narayan Mishra Panigrahi (grandfather of the plaintiff).
Narayan Mishra Panigrahi died in the year 1939 leaving behind his
three sons i.e. Krishnna Chandra Mishra, Purnna Chandra Mishra and
Nilamani Mishra alias Nilamber Mishra.
Krishnna Chandra Mishra died in the year 1978 leaving behind the
plaintiff along with his widow mother and other brothers.
After the death of Narayan Mishra Panigrahi in the year 1939, the
suit Plot No.4764 along with other properties left by him devolved upon
his three sons i.e. Krishnna Chandra Mishra, Purnna Chandra Mishra and
Nilamani Mishra. Subsequent to the death of Narayan Mishra Panigrahi,
his three sons including the father of the plaintiff partitioned their all joint
properties including the suit Plot No.4764. In such partition, the suit Plot
No.4764 along with some other properties fell into the share of the father
of the plaintiff i.e. Krishnna Chandra Mishra.
When Krishnna Chandra Mishra died in the year 1978, then, the
plaintiff filed a suit vide T.S. No.20 of 1968 against his brothers and
mother for partition of his own share in the properties left by his father
including the suit Plot No.4764. In such partition, the suit Plot No.4764
fell into the share of the plaintiff and accordingly, the plaintiff is the
owner of the suit properties.
Krishnna Chandra Mishra (father of the plaintiff) during his life
time, he (Krishnna Chandra Mishra) had given different portion of suit
Plot No.4764 to different persons on lease basis. The suit land described
in Schedule 'A' measuring an area of A0.14 decimals was leased out by
Krishnna Chandra Mishra (father of the plaintiff) in favour of the father
of the defendant Nos.1 to 3 and husband of the defendant No.4 i.e.
Nakula Behera in the year 1942 through a lease deed.
On the strength of such lease deed, Nakula Behera was possessing
the suit land, but, in the year 1964, the suit land vested in the State of
Odisha, because the suit plot was lakhraj land. After vesting of the suit
properties in the State, Krishnna Chandra Mishra applied before the
O.E.A. Collector for settlement of the suit properties in his name. The
O.E.A. Collector settled the suit properties in the name of Lakhrajdar i.e.
in the name of his grandfather Narayan Mishra Panigrahi. As Nakula
Behera (predecessor of the defendants) was under the permissive
possession over the suit properties under the plaintiff on the basis of the
lease deed, for which, after vesting of the suit properties in the State, the
plaintiff requested Nakula Behera to vacate the possession of the suit
land, but, as Nakula Behera had built a kutcha house over the suit
properties, for which, except the house portion, the possession of rest
other portions i.e. except the suit properties, the rest portions of Plot
No.4764 were delivered by him (Nakula Behera) to the plaintiff.
When in spite of request of the plaintiff to the defendants on dated
20.10.1982 for vacation of the suit properties in his favour, they
(defendants) did not vacate, then without getting any way, the plaintiff
approached the Civil Court by filing the suit vide T.S. No.20 of 1983
praying for eviction of the defendants from the suit properties.
5. Having been noticed from the Trial Court in the suit vide T.S.
No.20 of 1983, the defendants contested the same by filing their joint
written statement denying the averments made by the plaintiff in his
plaint taking their stands therein that, the father of the defendant Nos.1 to
3 and husband of the defendant No.4 i.e. Nakula Behera got the suit
properties from the father of the plaintiff i.e. from Krishnna Chandra
Mishra through a permanent lease in the year 1942 and since 1942, he
was in occupation over the suit properties and their predecessor i.e.
Nakula Behera had constructed a kutcha house initially therein, wherein
he along with his family members were residing and subsequent thereto,
Nakula Behera constructed a pucca house on the same, in which, electric
and water connections were provided and the Holding number of the
house of the defendants over the suit properties has been allotted by the
Baripada Municipality in favour of the defendants and the father of the
plaintiff had never recovered the possession of any portion of the suit
properties either from Nakula Behera or from the defendants at any point
of time till yet. The plaintiff has no interest in the suit properties and they
(defendants) are possessing the suit properties and they had/have been
residing on the same since the year 1942 i.e. since the time of their
predecessor Nakula Behera on the basis of the permanent lease deed
executed by the father of the plaintiff Krishnna Chandra Mishra in favour
of their predecessor Nakula Behera and as the plaintiff has no interest
over the suit properties, for which, the suit of the plaintiff is liable to be
dismissed against them (defendants).
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 5 (five) numbers of issues were framed by
the Trial Court in the suit vide T.S. No.20 of 1983 and the said issues
are:-
ISSUES
(i) Is the suit maintainable?
(ii) Is the suit barred by principles of waiver, acquiescence,
estoppels and limitations?
(iii) Is the suit bad for non-joinder of necessary parties?
(iv) Whether the plaintiff is entitled to a decree for eviction against
the defendants?
(v) Is the plaintiff entitled to any relief?
7. In order to substantiate the aforesaid relief sought for by the
plaintiff against the defendants in the suit vide T.S. No.20 of 1983, the
plaintiff examined four witnesses on his behalf including him and his
brother as P.Ws.1 & 4 and exhibited series of documents vide Exts.1 to 4.
On the contrary, in order to nullify/defeat the suit of the plaintiff,
the defendants examined three witnesses from their side including
defendant No.1 as D.W.1 and relied upon series of documents vide
Exts.A to D.
8. After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the Trial Court answered
all the issues against the plaintiff and in favour of the defendants and
basing upon the findings and observations made by the Trial Court in all
the issues against the plaintiff, the Trial Court dismissed the suit of the
plaintiff vide T.S. No.20 of 1983 as per its judgment and decree dated
23.02.1989 and 09.03.1989 respectively assigning the reasons that,
"the plaintiff has failed to establish his any interest over the suit
properties and likewise the suit of the plaintiff is not maintainable
for non-joinder of all the necessary parties. Because, the plaintiff
has claimed his title over the suit properties on the basis of the
settlement of the suit properties in O.E.A. Case No.724 of 1965-66
w.e.f. 01.10.1964 as per Ext.3 under Section 7 of the O.E.A. Act,
1951 in the name of Narayan Mishra Panigrahi (grandfather of the
plaintiff), though admittedly his grandfather Narayan Mishra
Panigrahi was not alive by the time of initiation of O.E.A. Case
No.724 of 1965-66, as Narayan Mishra Panigrahi had expired in the
year 1939. For which, settlement of the suit properties in O.E.A.
Case No.724 of 1965-66 as per Ext.3 in favour of a dead person i.e.
Narayan Mishra Panigrahi is non est in the eye of law. So, no
interest in the suit properties was created in favour of the plaintiff
and as such, the plaintiff has no interest in the suit properties.
Therefore, the plaintiff is not entitled to get the decree against the
defendants. As the plaintiff has admitted that, the defendants are
staying in the suit properties since the time of their predecessor
Nakula Behera i.e. since 1942 and the State being the owner of the
suit properties has not taken any step to evict them, for which, the
suit of the plaintiff is not maintainable under law."
9. On being dissatisfied with the aforesaid judgment and decree i.e.
dismissal of the suit of the plaintiff passed by the Trial Court, he
(plaintiff) challenged the same by preferring the First Appeal vide T.A.
No.18 of 1989 being the appellant against the defendants arraying them
(defendants) as respondents.
10. After hearing from both the sides, the First Appellate Court
dismissed that First Appeal vide T.A. No.18 of 1989 of the plaintiff
concurring/accepting the findings and observations made by the Trial
Court as per its judgment and decree dated 29.10.1996 and 08.11.1996
respectively.
11. On being aggrieved with the aforesaid judgment and decree of the
dismissal of the First Appeal vide T.A. No.18 of 1989 of the plaintiff
passed by the First Appellate Court, he (plaintiff) challenged the same by
preferring this second appeal being the appellant against the defendants
arraying them (defendants) as respondents.
12. This Second Appeal was admitted on formulation of the following
substantial question of law i.e.:-
Whether after vesting of interest in the Lakhraj property in the
State, recording of the said land in the name of the Lakhrajdar as
per Ext.3 creates a title?
13. I have already heard from the learned counsel for the appellant and
the learned counsel for the respondents.
14. In order to assail the judgments and decrees passed by the Trial
Court and First Appellate Court, the learned counsel for the appellant
relied upon the ratio of a decision of Hon'ble Court in a case between
Binayak Mohapatro and others Vrs. Jagilal Nayak and others reported
in (1977) 09 OHC CK 0009.
15. It is the own case of the plaintiff that,
"the name of the grandfather of the plaintiff was Narayan Mishra
Panigrahi. The said Narayan Mishra Panigrahi expired in the year 1939.
Narayan Mishra Panigrahi died leaving behind his three sons i.e.
Krishnna Chandra Mishra, Purnna Chandra Mishra and Nilamani Mishra.
Krishnna Chandra Mishra is the father of the plaintiff. Krishnna
Chandra Mishra died in the year 1978 leaving behind his widow wife, the
plaintiff along with his other sons.
The suit properties vested in the State in the year 1964 free from
all encumbrances. The suit properties were settled in the name of the
Narayan Mishra Panigrahi (grandfather of the plaintiff, who had expired in
the year 1939) in O.E.A. Case No.724 of 1965-66 w.e.f. 01.10.1964 under
Section 7 of the O.E.A. Act, 1951 as per Ext.3.
The father of the plaintiff i.e. Krishnna Chandra Mishra had
executed a lease deed in the year 1942 in respect of the suit properties in
favour of the predecessor of the defendants i.e. Nakula Behera and since
1942, Nakula Behera was residing over the suit properties. The suit
properties had fallen in the share of the plaintiff as per the decree passed in
the suit vide T.S. No.20 of 1968 between him, his mother, his brothers and
others."
16. As per Section 7 of the O.E.A. Act, 1951, the lands those were in
Khas possession of the intermediaries at the time of vesting, the said
properties can be settled in the name of the intermediary, but not in
favour of any person other than the intermediary.
17. When, undisputedly by the time of vesting of the suit properties in
the State in the year 1964, Narayan Mishra Panigrahi was not in mortal
earth, as he had expired much prior to that i.e. in the year 1939, then it
was obvious and natural that, by the time of initiation of O.E.A Case
No.724 of 1965-66 under Section 7 of the O.E.A. Act, Narayan Mishra
Panigrahi was not in Khas possession over the suit properties, as he was
dead by then and the settlement of the suit properties in O.E.A. Case
No.724 of 1965-66 under Section 7 of the O.E.A. Act according to the
Section 7 of the O.E.A. Act as per Ext.3 in favour of a dead person i.e.
Narayan Mishra Panigrahi (who was not in possession over the suit
properties due to his death much prior to 1964) shall be deemed as non
est in the eye of law. Because, as per law, no order of settlement like the
suit properties can be made under Section 7 of the O.E.A. Act in favour
of a dead person, who was not in actual possession over the suit
properties on the date of settlement of the same in his name. For which, it
is held that, the order of settlement of the suit properties made in O.E.A.
Case No.724 of 1965-66 as per Ext.3 in favour of the grandfather of the
plaintiff i.e. Narayan Mishra Panigrahi is illegal, void and non est in the
eye of law.
When it is held that, the order of settlement of the suit properties in
the name of the grandfather of the plaintiff i.e. Narayan Mishra Panigrahi
as per the O.E.A. Case No.724 of 1965-66 under Section 7 of the O.E.A.
Act, 1951 is illegal/invalid/non est in the eye of law, then at this juncture,
the said order of settlement passed in O.E.A. Case No.724 of 1965-66 in
the name of a dead person i.e. in the name of grandfather of the plaintiff
Narayan Mishra Panigrahi is to be ignored.
On this aspect, the propositions of law has already been clarified
by the Hon'ble Court and Apex Court in the ratio of the following
decisions:-
(i) In a case between Gurnam Singh (Dead) through LRs and others Vrs.
Gurbachan Kaur (dead) by LRs. reported in (2017) 13 SCC 414, any decision in
favour of and/or against dead person renders such decision nullity.
(ii) In a case between Raniya Bai Vrs. Tekmani Rathore and others reported in
2023 Livelaw (MP) 64 that, any decree passed in favour of or against a dead
person is in nullity, as it has been passed in favour of a dead person, for which, the
same is nullity. (Para 10)
18. When, the order passed in O.E.A. Case No.724 of 1965-66 in
favour of the grandfather of the plaintiff i.e. Narayan Mishra Panigrahi in
respect of the settlement of the suit properties is ignored, then at this
juncture, it is held that, the State is the owner of the suit properties.
Because, due to vesting of the suit properties in the State free from all
encumbrances, the State has become the owner as per the own saying of
the plaintiff.
For which, the decision relied upon by the appellant (plaintiff)
indicated in Para No.14 of this judgment is not applicable to this appeal at
hand on facts as discussed above.
19. When, there is no material in the record to show that, the plaintiff
is in possession over the suit properties and when it is established that, the
ownership of the suit properties lies with the State and when the plaintiff
has filed the suit for eviction against the defendants on the basis of his
ownership over the suit properties and when the plaintiff has failed to
establish his ownership over the suit properties and when the plaintiff has
not impleaded to the owner of the same i.e. State along with his mother
and brothers as parties to the suit and when it is established from the
materials in the records that, the defendants are residing on the suit
properties since the time of their predecessor Nakula Behera i.e. since
1942 on the basis of the lease deed executed by the father of the plaintiff
in favour of Nakula Behera, then at this juncture, it cannot be held that,
the judgments and decrees passed by the Trial Court as well as First
Appellate Court dismissing the suit of the plaintiff are unreasonable or
improper in any manner. For which, the question of interfering with the
same through this second appeal filed by the plaintiff does not arise.
Therefore, there is no merit in the appeal of the appellant
(plaintiff). The same must fail.
20. In result, the second appeal filed by the appellant (plaintiff) is
dismissed on contest, but without cost.
The judgments and decrees passed by the Trial Court and First
Appellate Court in T.S. No.20 of 1983 and T.A. No.18 of 1989
respectively are confirmed.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
16.04.2025//Utkalika Nayak//
Junior Stenographer
