[Cites 1, Cited by 0]
Orissa High Court
Gagan Chandra Rout vs Minarva Nayak (Dead) on 24 December, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 72 of 2021
(An Application under Articles 227 of the Constitution of
India)
Gagan Chandra Rout ...... Petitioner
-Versus-
Minarva Nayak (Dead)
Dushmanta Nayak
& Others .... Opposite Parties
______________________________________________________
For Petitioner : Mr. D.P.Mohanty, Advocate
For Opp. Party : Mr. D.K.Mohanty, Advocate
______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
24.12.2025
SASHIKANTA MISHRA, J.
The petitioner is the plaintiff in C.S. No. 20 of 2011
pending in the Court of learned Civil Judge (Senior
Division), 1st Court, Cuttack. Said suit was disposed of by
ex parte judgment dated 17.02.2012 and decree dated
25.02.2012. The present Opposite Party Nos. 2 to 10 were
defendants in the said suit. The suit was filed for
declaration of right, title and confirmation of possession.
The L.R.s of the present Opposite Party No.1 preferred
appeal being RFA No. 164 of 2012 to the Court of learned
District Judge, Cuttack along with an application seeking
leave to appeal, as the original Opposite Party No.1 was
not a party to the suit. Said application came to be
allowed by the learned District Judge vide order dated
28.01.2020. Being aggrieved, the plaintiff-petitioner has
filed the present application under Article 227 of the
Constitution of India.
2. Heard Mr. D.P.Mohanty, learned counsel for the
plaintiff-petitioner and Mr. D.K.Mohanty, learned counsel
for the contesting Opposite Party.
3. Mr. Mohanty would argue that the impugned order
is cryptic and non-speaking, inasmuch as it does not
specify the reasons for which the application seeking
leave to appeal was allowed. It is further contended that
even otherwise, it is clearly borne out from the materials
on record that the Opposite Party-appellant had no locus
standi to file the appeal as she has no subsisting right
over the property decreed in favour of the plaintiff. By no
stretch of imagination, can she be treated as being
affected by the decree so as to be permitted to challenge
it.
4. On the other hand, Mr. D.K.Mohanty would argue
that the plaintiff's case is based on an agreement for sale
in respect of the suit land which measured Ac. 0.045
decimals during the sabik settlement but its area was
enhanced by Ac. 0.03 decimals, thus making it Ac 0.048
decimals during HAL settlement operations. Since HAL
settlement was done after execution of the so-called
agreement for sale, the plaintiff cannot claim any right
over the enhanced area in the HAL ROR. The suit was
filed in a collusive manner to take advantage of the
increase in area.
5. It is well settled that as per Section 96, an appeal
can be preferred against the judgment passed by the trial
Court by any party prejudicially and adversely affected by
it. Not being a party to the suit by itself cannot be a bar if
it is demonstrated by the person seeking leave that he is
otherwise bound by the decree or adversely affected
thereby.
6. Coming to the facts of the present case, admittedly,
the Opposite Party No.1 was not a party to the suit. The
suit was not for specific performance of contract but for
declaration of title and confirmation of possession. It is
not necessary to go into the factual controversy as
regards enhancement of the area of the suit property in
HAL settlement operations. The only thing that the
appellant is required to establish is that she has a
semblance of right over the suit property decreed in
favour of the plaintiff so as to be affected by the decree.
The First Appellate Court, in the impugned order has
held that the Opposite Party No.1- appellant has
encroached some portion of the land of the plaintiffs, as
per the Amin's report dated 20.12.2010, which is prior to
the filing of the suit. Having held so, it was rather
abruptly held that the Opposite Party No.1-appellant has
been adversely affected by the judgment and decree
passed by the trial Court.
7. This Court fails to understand as to how it could be
held so if it is borne out from materials on record that the
appellant had encroached upon some portion of the
property even prior to the filling of the suit and had some
basis to lay a claim over such portion. It was always open
to her to either seek impleadment in the suit or file a
separate suit.
8. In the application seeking to leave appeal (copy
enclosed as Annexure-3), it is not stated that she was not
aware of the filing and pendency of the suit by the
plaintiff. All that has been said is that the suit was filed
by practising fraud. It cannot therefore, be said that the
appellant was adversely affected by the judgment and
decree. The First Appellate Court does not appear to have
considered the matter from the above perspective for
which the order granting leave is rendered erroneous and
unsustainable. As already stated, if the Opposite Party
No.1-appellant has any valid claim over the property
encroached by her, it is open to her to get the same
adjudicated by seeking appropriate legal remedy but she
cannot be permitted to challenge the judgment and
decree passed in favour of the plaintiff.
9. In the result, the CMP is allowed. The impugned
order is hereby set aside.
...............................
Sashikanta Mishra,
Judge
Deepak
