Orissa High Court
Smt. Baidhai Sethi @ Baidei Sethi & ... vs Sibaram Sethi & Another on 31 July, 2025
ORISSA HIGH COURT : CUTTACK
R.S.A. No.263 of 2002
In the matter of an appeal under Section 100 C.P.C, 1908.
***
Smt. Baidhai Sethi @ Baidei Sethi & Others ...
Appellants.
-VERSUS-
Sibaram Sethi & Another ... Respondents.
Counsel appeared for the parties:
For the Appellants : Mr. P. Mohanty, Sr. Advocate.
Mr. Pronoy Mohanty, Adv.
For the Respondents : Mr. A. Das, Advocate
(For respondent Nos.1 & 2).
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing : 21.07.2025 :: Date of Judgment :31.07.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This 2nd Appeal has been preferred against the
confirming Judgment.
2. The appellants in this 2nd Appeal are the LRs of the
defendant No.1 in the suit vide T.S. No.62 of 1991 before the
Trial Court and the appellants before the First Appellate Court
in the First Appeal vide T.A. No.5 of 1998-GDC.
The respondent No.1 in this 2nd Appeal was the sole
plaintiff before the Trial Court in the suit vide T.S. No.62 of
1991 and respondent No.1 before the First Appellate Court in
the First Appeal vide T.A. No.5 of 1998-GDC.
The respondent No.2 in this 2nd Appeal was the
defendant No.2 before the Trial Court in the suit vide T.S.
No.62 of 1991 and respondent No.2 before the First Appellate
Court in the First Appeal vide T.A. No.5 of 1998-GDC.
3. The suit of the plaintiff (respondent No.1 in this 2nd
Appeal, Sibaram Sethi) against the defendant No.1 was a suit
for recovery of possession in the form of mandatory injunction
in respect of the suit properties described in the Schedule of
the plaint i.e. Ac.0.05 dec. out of Ac.0.10 dec. of plot No.247
under Khata No.646 in Mouza-Dura under Berhampur
Tahasil.
The genealogy described in Paragraph No.2 of the plaint
is the family pedigree of the plaintiff and defendant No.2.
As per the genealogy given in the plaint of the plaintiff,
Hadu Sethi was their common ancestor. The said Hadu Sethi
had two wives.
Arjun Sethi, Laxman Sethi and Gop Sethi are the 3 sons
of the first wife of Hadu Sethi.
Narasinga Sethi and Govinda Sethi are the two sons of
the second wife of Hadu Sethi.
Plot No.247, Ac.0.10 dec. under Khata No.646 in Mouza-
Dura originally belonged to Hadu Sethi. After the death of
Hadu Sethi, the suit properties were divided between the sons
and grandsons of Hadu Sethi. Accordingly, they were/are
enjoying the same separately. The plaintiff and defendant No.2
purchased the share of Gobinda Sethi son of Hadu Sethi
through R.S.D. No.3601 in the year 1979. The said purchased
property of the plaintiff and defendant No.2 is situated
adjoining the southern side of the defendants share. As such,
the plaintiff and defendant No.2 possessed and enjoyed the
purchased share of Gobinda Sethi described in the rough
sketch map of the plaint with specific indication thereof as
A,B,C & D as the owners of the same, which are the suit
properties in the suit.
The defendant No.1 has no right, title and interest over
the suit properties of the plaintiff and defendant No.2. He
(plaintiff) was working as a peon under Purushottampur
Tahasil. He (plaintiff) stocked materials such as stones, bricks
and sands etc for construction of a house on the suit
properties. On dated 30.04.1991, he (plaintiff) found that, the
defendant No.1 is making construction encroaching the suit
properties using the materials gathered by the plaintiff. When
the plaintiff objected to the same, the defendant No.1 did not
respond and the defendant No.1 also gathered materials such
as, stones, bricks and sands for proceeding with the
construction works further. Therefore, the plaintiff
approached the Civil Court by filing a suit vide T.S.No.62 of
1991 against the defendants praying for a declaration that, he
(plaintiff) and Jagannath Sethi (defendant No.2) are the
owners of the suit properties and to issue mandatory
injunction against the defendant No.1 directing him to
demolish the constructions raised by him (defendant No.1) on
the suit properties and to deliver vacant possession of the
same to the plaintiff, failing which, permission be given to the
plaintiff to demolish the said constructions raised by
defendant No.1 and to realize the costs thereof through the
process of Court from the defendant No.1 along with other
reliefs, if any, to which, the plaintiff is entitled for.
4. Having been noticed from the Trial Court in the suit vide
T.S. No.62 of 1991, the defendant No.1 contested the suit of
the plaintiff by filing his written statement denying the
allegations alleged by the plaintiff in his plaint stating that,
the suit plot No.247 Ac.0.10 dec. under Khata No.646 along
with other joint properties were divided into 4 equal shares
between Lakhmana, Gopi, Narasimha (defendant No.1) and
Govinda and accordingly, they are possessing their said
properties. He (defendant No.1) being the son of Hadu Sethi, is
possessing his share. He has not encroached the land of
plaintiff. The plaintiff is not the exclusive owner of the suit
scheduled properties shown in the rough sketch map marked
as A,B,C & D. The suit of the plaintiff is bad for non-joinder of
necessary party. For which, the suit of the plaintiff is not
maintainable and the same is liable to be dismissed.
5. Basing upon the aforesaid pleadings and matters in
controversies between the parties, altogether 5 numbers of
issues were framed by the Trial Court in the suit vide T.S. No.
62 of 1991 and the said issues are:
ISSUES
1. Is the suit maintainable?
2. Whether the plaintiff has got right, title and interest over
the suit land?
3. Whether the defendants have got any right, title and
interest over the suit land?
4. Whether the defendant No.1 forcibly constructed the house
on the suit land and raised with constructions over the same?
5. To what reliefs?
6. In order to substantiate the aforesaid relief sought for by
the plaintiff against the defendants, the plaintiff examined
himself as P.W.1 and exhibited 4 documents from his side
vide Exts.1 to 4.
On the contrary, in order to nullify/defeat the suit of the
plaintiff, the defendant No.1 examined two witnesses on his
behalf including him as D.W.1 and relied upon two documents
from his side vide Exts.A & B.
7. After conclusion of hearing and on perusal of the
materials, documents and evidence available in the record, the
Trial Court answered all the issues in favour of the plaintiff
and defendant No.2 and against the defendant No.1 and on
the basis of the findings and observations made by the Trial
Court in the issues in favour of the plaintiff and defendant
No.2 and against the defendant No.1, the Trial Court decreed
the suit of the plaintiff vide T.S. No.62 of 1991 on contest
against the defendant No.1 as per its Judgment and Decree
dated 28.11.1997 and 10.12.1997 respectively and declared
the title of the plaintiff and defendant No.2 over the suit
properties and directed the defendant No.1 to demolish the
structures raised by him on the suit schedule land and to
deliver vacant possession of the suit land to the plaintiff
within 2 months from the date of Judgment and Decree
assigning the reasons that,
"the plaintiff has established his title and the defendant
No.2 over the suit properties, but the the defendant No.1 has no
title over the suit properties. The defendant No.1 has
encroached the suit properties. For which, he (defendant No.1)
is liable to remove the structures within two months from the
suit properties."
8. On being dissatisfied with the aforesaid Judgment and
Decree passed by the Trial Court in T.S. No.62 of 1991 in
favour of the plaintiff and defendant No.2 and against the
defendant No.1, he (defendant No.1) challenged the same by
preferring the First Appeal vide T.A. No.5 of 1998-GDC being
the appellant against the plaintiff arraying him as respondent
No.1 and also arraying defendant No.2 as respondent No.2.
When, during the pendency of the First Appeal vide T.A.
No.5 of 1998-GDC, the defendant No.1 (appellant) expired,
then, in his place, his LRs were substituted as Appellant
Nos.1(a) to 1(c).
9. After hearing from both the sides, the First Appellate
Court dismissed that 1st Appeal vide T.A. No.5 of 1998-GDC of
the defendant No.1 as per its Judgment and Decree dated
04.09.2002 & 16.09.2002 respectively concurring/confirming
the findings and observations made by the Trial Court in the
Judgment and Decree of the suit vide T.S. No.62 of 1991 in
favour of the plaintiff and defendant No.2 and against the
defendant No.1.
10. On being aggrieved with the aforesaid Judgment and
Decree of the dismissal of the 1st Appeal vide T.A. No.5 of
1998-GDC passed by the learned First Appellate Court, the
LRs of the defendant No.1 preferred this 2nd Appeal being the
appellants against the plaintiff and defendant No.2 arraying
them as respondents.
11. This 2nd Appeal was admitted on formulation of the
following substantial questions of law i.e.
I. Whether the suit has been
completely and effectually adjudicated
without Govinda being impleaded as a party
or is the suit bad for non-joinder of
necessary party?
II. Whether the R.o.R can be relied on
to give finding that, the plaintiff has title over
the suit properties for passing the decrees in
respect of reliefs sought for by the plaintiff?
12. I have already heard from the learned Sr. Advocate for
the appellants (LRs of the defendant No.1) and the learned
counsel for the respondents (plaintiff and defendant No.2).
13. When the aforesaid two formulated substantial questions
of law are interlinked according to the Judgments and Decrees
passed by the Trial Court and First Appellate Court on the
basis of the pleadings and evidence of the parties in respect of
the suit properties, then, both the aforesaid formulated
substantial questions of law are taken up together
analogously for their discussions hereunder:
The prayers of the plaintiff in the suit vide T.S. No.62 of
1991 in respect of the suit properties described in the
schedule of the plaint are for declaration of title and recovery
of possession in the form of mandatory injunction.
In order to have an instant reference in respect of the
suit properties described in the schedule of the plaint vide
T.S. No.62 of 1991 by the plaintiff (respondent No.1 in this 2nd
Appeal) is depicted hereunder:
Schedule
Property situated in village Dura within Sub-Registrar, Berhampur
bearing Khatian No.646, Plot No.247 Ac.0.05 from ( __________ ) i.e.
breadth South to North 4/2 cubits and length East to West-27 cubits,
bounded by:-
East-College
West-Road
South-Thrashing floor of Jagannath ethi (son of Laxman Sethi).
North-Thrashing floor of Narasingha Sethi (defendant No.1).
14. Ext.1 is the R.o.R. of suit Khata No.646. It appears from
Ext.1 that, the suit Khata No.646 in the Hal Settlement has
been published in the name of Siba Sethi son of Khudi Sethi,
Arjuna Sethi, Laxman Sethi, Narasinha Sethi & Gobinda Sethi
sons of Hadu Sethi, Mohan Sethi son of Gopi Sethi.
Accordingly, the Hal R.o.R of the suit land vide Ext.1
stands jointly in the names of Siba Sethi (plaintiff), Arjuna
Sethi, Laxman Sethi, Narasinha Sethi (defendant No.1),
Gobinda Sethi & Mohan Sethi. But, the plaintiff has not
arrayed Arjuna Sethi, Laxman Sethi, Gobinda Sethi and
Mohan Sethi as parties in the suit, though, their names have
been recorded jointly in the Hal R.o.R of suit Khata No.646
vide Ext.1 along with the plaintiff and defendant No.1.
It is the settled propositions of law that, in order to get a
decree of declaration of title in respect of the properties
covered under the jointly recorded R.o.R like Ext.1, all the
recorded tenants of the said R.o.R or in case of death of any of
the recorded tenants thereof, his/her LRs are necessary
parties to the suit.
Here in this suit/appeal at hand, though, the plaintiff
has prayed for declaration of his title over a portion of plot
No.247 under Khata No.646, but, he (plaintiff) has not arrayed
all the jointly recorded tenants of the said Hal R.o.R vide Ext.1
or the LRs of any of the deceased recorded tenants of that
R.o.R (Ext.1) as the parties in the suit.
There is no explanation on behalf of the plaintiff about
the cause and reason for non-impleadment of all the said
jointly recorded tenants of the R.o.R vide Khata No.646 (Ext.1)
as party in the suit.
On this aspect, the propositions of law has already been
clarified in the ratio of the following decisions:
i) In a case between M/s. Rattna Oil Mills/Rice Mills Vs. Paramjit
Singh & Others reported in 2008 (1) CCC 40 (SC) that, in a suit
for declaration, the person whose names has been entered in the
R.o.R, he should have been given opportunity of hearing by the
Court.
ii) In a case between Ch. Surat Singh (dead) and others Vs.
Manoharlal & Others reported in (1971) 3 SCC 889 that,
property of a person cannot be dealt with behind his back.
When, the names of Arjuna Sethi, Laxman Sethi,
Gobinda Sethi and Mohan Sethi have been jointly recorded
with the plaintiff and defendant No.1 in suit Khata No.646
vide Ext.1, then, at this juncture, in view of the principles of
law enunciated in the ratio of the aforesaid decisions of the
Apex Court, the said Arjuna Sethi, Laxman Sethi, Gobinda
Sethi and Mohan Sethi or their LRs in case of their death
should have been arrayed as party in the suit of the plaintiff,
because they are necessary parties. For which, due to non-
impleadment to the aforesaid necessary parties by the plaintiff
in the suit vide T.S. No.62 of 1991 for declaration and
recovery of possession, the suit of the plaintiff is not
maintainable under law.
15. That apart, the plaintiff has sought for recovery of
possession in the form of mandatory injunction praying for
recovery of Ac.0.05 dec. of plot No.247 under Khata No.646
out of ( _________ ) as indicated in the schedule of the plaint.
Undisputedly the area of plot No.247 is Ac.0.10
decimals. When it is forthcoming from the R.o.R vide Ext.1
relied by the plaintiff that, the suit properties are the jointly
recorded properties of the plaintiff and others and when some
of the jointly recorded tenants i.e. Arjuna Sethi, Laxman
Sethi, Gobinda Sethi and Mohan Sethi or in case of their
death, their LRs have not been arrayed as party in the suit
filed by the plaintiff for declaration and recovery possession,
then, at this juncture, the suit of the plaintiff cannot be held
as maintainable under law on the ground that, the suit for
recovery of possession cannot be maintainable in respect of
joint and undivided properties as well as in respect of an
unidentified properties without indicating specific identity of
the properties showing its exact location out of entire
properties of suit plot No.247.
On this aspect the propositions of law has already been
clarified in the ratio of the following decisions:
I. In a case between Sri Ainthi Mallik (dead) & Others Vs. Tarini Mallik
reported in 2024 (II) OLR 960 (Para No.12) that, suit for declaration
without filing suit for partition in respect of undivided property is not
maintainable.
II. In a case between Mary Pushpam Vs. Telvi Curusumary and Others
reported in 2024 (4) Civ.C.C. 522 (SC) that, suit for possession has to
describe the property in question with accuracy and all details of
measurement and boundaries. In absence of the same suit would be liable
to be dismissed on the ground of its identifiablity.
III. In a case between Janaki Majhi (dead) & Others Vs. Nangi Majhiani
(dead) & Another reported in 2024 (4) C.C.C. 97 (Ori.) that, suit for
declaration of title and recovery of possession cannot be maintained in
respect of joint and undivided property without partition of that property.
IV. In a case between Shri Madan Lal (through LRs) & Others Vs. Shri
Ram Pratap (through LRs.) & Others reported in (2011) 177 DLT 159
that, a suit under Section 5 of the Specific Relief Act, a suit for recovery
of possession did not lie, which relates to recovery of specific
immoveable property, when plaintiff failed to establish his title over the
specific/definite property stated as the suit properties.
16. Here in this suit/appeal at hand, when the plaintiff has
sought for declaration of title and recovery of possession in
respect of Ac.0.05 decimals out of Ac.0.10 dec. of plot No.247
under Khata No.646 without indicating by a proper sketch
map drawn to the scale showing its proper identity and when
the Suit Khata vide Ext.1 has been recorded jointly in the
name of the plaintiff, defendant No.1 along with four others
and when all the recorded persons in Ext.1 have not been
arrayed as a party in the suit and when Section 5 of the
Specific Relief Act provides for recovery of specific immovable
property and when the plaintiff has not specified the suit
properties i.e. Ac.0.05 dec. out of Ac.0.10 dec. of plot No.247
sepcifically/definitely for establishing its proper identity, then,
at this juncture, by applying the principles of law enunciated
in the ratio of the aforesaid decisions, it is held that, the
Judgments and Decrees passed by the Trial Court and First
Appellate Court in T.S. No.62 of 1991 and in T.A. No.5 of
1998-GDC respectively declaring the title of the plaintiff over
the suit properties i.e. Ac.0.05 dec. out of Ac.0.10 as well as
the decree for recovery of possession of the same in the form
of mandatory injunction against the defendant No.1 is not
sustainable under law.
For which, there is justification under law for making
interference with the same through this 2nd Appeal filed by the
appellant (legal heirs of defendant No.1).
17. Therefore, there is merit in the appeal of the appellants
(LRs of the defendant No.1). The same must succeed.
18. In result, this 2nd Appeal filed by the appellants (LRs of
the defendant No.1) is allowed on contest, but without cost.
19. The Judgments and Decrees passed by the Trial Court
and First Appellate Court in T.S. No.62 of 1991 and T.A. No.5
of 1998-GDC are set aside.
20. The suit be and the same filed by the plaintiff
(respondent No.1 in this 2nd Appeal) is dismissed on contest
against the defendant No.1 but without cost giving liberty to
the parties for partition of their legitimate shares, if any, in
the suit plot No.247 by filing a suit for partition.
(ANANDA CHANDRA BEHERA)
High Court of Orissa, Cuttack
Theof31Orissa, Cuttack,
.07. 2025// RatiIndia.
Ranjan Nayak
Date: 01-Aug-2025Sr.
18:34:08
Stenographer
