Orissa High Court
Afr Savitri Devi & Others vs Srikrushna Academy & Others on 31 October, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.410 of 2014
[In the matter of an appeal under Section 100 of CPC from
the judgment dated 30.06.2014 and decree passed by
learned District Judge, Jagatsinghpur in R.F.A. No.53 of
1997 arising out of the judgment and decree dated
15.07.1995 passed by learned Civil Judge (Sr. Division),
Jagatsinghpur in T.S. No.49 of 1988]
AFR Savitri Devi & Others .... Appellants
-Versus-
Srikrushna Academy & Others .... Respondents
Advocate(s) appeared in this case:
For the Appellants : Mr. S.K. Mishra, Sr. Advocate
with Mr. S.K. Pradhan,Advocate
For Respondents : Mr. A.R. Dash, Additional
Government Advocate
Mr. R.N. Mishra, Advocate
[For R-8]
Mr. B. Pattnaik, Advocate
[For R Nos-1 & 2]
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
st
31 October, 2025
SASHIKANTA MISHRA, J.
This is a plaintiff's appeal against a confirming
judgment. The suit filed by the plaintiff for declaration of
his title and for correction of ROR being dismissed by the
trial Court was confirmed in appeal.
2. For convenience, the parties are referred to as per
their respective status before the trial Court.
3. The plaintiff's case is that the suit land originally
stood recorded in the name of Sk. Taju Mohammad, Sk.
Jabar Mohammad, Sk. Manan Mohammad, Sk. Safiti
Mohammad and Sk. Baboo Mohammad in the sabik record
of rights published in 1930. The plaintiff purchased the
land in a Court auction sale on 25.03.1949 in Execution
Case No.1003 of 1947-48 of the Court of Deputy Collector,
Execution Cuttack. The possession was delivered on
13.11.1949 through the legal process. Since then, the
plaintiff is in possession by paying rent to the Tahasildar,
Jagatsinghpur. He also sold Ac.0.08 decs of land towards
the northern portion of suit land to one Jayanta Kumar
Das on 24.07.1978 and delivered possession. During the
Hal settlement operation the settlement authorities
wrongly recorded the entire land in the name of defendant
No.1, illegally. The plaintiff issued notice to the
Government under Section 80 of CPC and thereafter, filed
the suit for declaration.
4. Defendant Nos.1 to 3 and the Proforma-defendant
Jayanta Kumar Das filed their written statements.
Defendant Nos.1 to 3 challenged the maintainability of the
suit on the ground of non-joinder and mis-joinder of
parties, limitation and of being hit by Section 42 of the
Specific Relief Act. It was stated that the execution case is
illegal and cannot affect the right of the parties. The Hal-
ROR was published correctly after making spot enquiry.
5. The defendants further claimed that one Dewan
Bahadur Srikrushna Mohapatra had purchased the suit
property from the original owner vide registered sale deed
in the year 1931 for establishing a school and he delivered
possession of the same. The suit land is used as
playground on one portion and the school building is
situated over the other portion. The school was taken over
by the Government in the year 1961 and accordingly the
land with building was handed over to the State
Government. The settlement authorities being satisfied
with the possession of defendant No.1 recorded its name in
the Hal-ROR. The plaintiff was never in possession.
6. Basing on the rival pleadings, the trial Court
framed the following issues for determination:-
"1.Whether the suit is maintainable?
2. Whether the plaintiff has cause of action to file
the suit?
3. Whether the suit is bad for non-joinder and mis-
joinder of necessary parties?
4. Whether the suit is barred by the law of
limitation?
5. Whether the suit is hit under section 42 of the
Specific Relief Act?
6. Whether the plaintiff acquired possession of the
suit land on 13.11.1949 by virtue of confirmation
of sale in execution case No.1003 of 1947-48
through the legal process of the Executive Court?
7. Whether the defendants have got right, title,
interest and possession over the suit property?
8. Whether the Hal settlement entries in respect of
the suit property are valid, genuine and legal?
9. Whether the plaintiff is entitled to get the reliefs
claimed?"
7. Taking up issue Nos.6, 7 and 8 at the first
instance the trial Court took note of the evidence adduced
by the plaintiff in support of his claim of having purchased
the property through auction sale in the execution case as
also of delivery of possession. On the other hand, the
defendants did not plead or prove as to who was the
rightful owner from whom Dewan Bahadur Srikrushna
Mohapatra had purchased the land as claimed by them.
Moreover, the sale deeds filed by them were not supported
by the pleadings and they could not establish as to how
the defendant No.1 got possession of the suit land. The
trial Court therefore, held that the plaintiff is in exclusive
and peaceful possession whereas, the defendants failed to
prove their possession. It was also held that the
defendants have no right, title, interest and possession
over the suit land. Therefore, the recording of the name of
defendant No.1 in the Hal-ROR is not valid or legal.
On issue Nos.1, 3, and 9, the trial Court observed
that the suit was for correction of Hal-ROR and declaration
of the recording of the name of the State in the Hal-ROR
but the Collector and the Tahasildar were not impleaded
as parties despite being necessary parties. The suit was
therefore, barred for non-joinder of parties. It was further
held that the plaintiff had not issued any notice under
Section 80 of CPC to the authorities against whom he had
sought for declaration and correction of ROR i.e., the
Collector and the Tahasildar. As such, the suit was not
maintainable.
On such findings the suit was dismissed. Being
aggrieved, the plaintiff carried appeal, which was heard by
the learned District Judge, Jagatsinghpur. In course of
hearing of the appeal, the plaintiff filed an application for
amendment to incorporate the averment relating to the
service of notice under Section 80 of CPC in the plaint. The
contesting defendants filed application under Order 41
Rule 27 to exhibit some sale deeds. The First Appellate
Court framed the following questions for determination:-
"i. Whether requirement of Section 80 CPC can
be cured and relates back to the date of
filing of the suit if incorporated during
pendency of the suit?
ii. Whether the Collector and the Tahasildar
are necessary parties and notice under
Section 80 CPC is essential for filing of the
suit?
iii. Whether the First Appellate Court is
precluded to scrutiny the materials
available on record, in absence of any
cross-appeal or cross-objection filed by the
defendants/respondents?"
8. On the first point, the first appellate Court held
that the plaintiff had amended his plaint to aver that the
notice under Section 80 was duly served and exhibited the
copy of the notice and the postal receipts by way of
additional evidence. The First Appellate Court was not
inclined to accept the evidence so adduced on the ground
that the AD Cards had not been filed and the notice did
not bear the date on which it was sent. Moreover, the
notice did not specify the relief claimed or the facts relating
to the cause of action nor was it accompanied by a copy of
the plaint. It was therefore, held that the documents
exhibited subsequently are manufactured for which, the
suit was rightly held to be not maintainable.
As regards the second point, the first appellate
Court held that the Secretary to Government in the
Department of Education having been impleaded as party,
the Collector and the Tahasildar are not necessary parties.
On the third point, the first appellate Court
while not accepting the additional evidence adduced by the
defendants held that the Hal-ROR having been published
on 10.04.1985 but not having been challenged within
three years, the suit is barred by limitation. On the above
findings basically, the appeal was dismissed.
9. Being further aggrieved, the plaintiff has
preferred the present second appeal, which was admitted
on the following substantial questions of law.
"1. Whether the lower appellate court is right
in holding that the plaintiff's suit is liable to
be dismissed on the ground of non-service of
notice under Section 80 of the CPC before
institution of the suit and by further saying
that there had been an attempt to patch up
the lacunae by producing Ext. 10 which is a
manufactured one for the purpose and
whether such a finding is perverse?
2. Whether the courts below are right in
dismissing the suit when even the
defendants have totally failed to prove their
case by adducing evidence in support of their
claim?
3.Whether the learned Appellate Court erred
in law in accepting the sale deed No.16969
dated 08.06.1931 and sale deed No.2453
dated 03.07.1931 as additional evidence
and Order-41 Rule 27 of CPC in absence of
originals thereof and further in the absence
of any material evidence laid by the
defendant to accept the sale deeds as
Secondary Evidence?
4.When the claim of the plaintiff is
essentially against the School defendant
Nos.1 and 2, whether non-service of notice
under Section 80 of CPC will debar claim of
the plaintiff when defendant Nos.3 to 5 are
not necessary parties to the suit?"
10. Heard Mr. S.K. Mishra, learned Senior Counsel
with Mr. S.K. Pradhan learned counsel for the plaintiff-
appellants; Mr. A.R. Dash, learned Additional Government
Advocate for the State-defendants; Mr. R.N. Mishra,
learned counsel for the defendant-respondent No.-8 and
Mr. B Pattanaik, learned counsel appearing for the
defendant-respondent Nos.1 and 2.
11. Mr. Mishra would argue that both the Courts
below have committed manifest error in holding that the
service of notice under Section 80 of CPC before institution
of the suit on the public officers impleaded as parties to
the case was mandatory even though, the plaintiff had not
claimed any specific relief from the said offices. Even
otherwise, the plaintiff amended his plaint and also
adduced evidence of service of notice on the Collector,
which was not accepted by the first appellate Court on
flimsy and untenable grounds. The first appellate Court
entered into the technicalities unnecessarily and even
though, there was evidence of substantial compliance of
Section 80 of CPC, it was held otherwise.
Mr. Mishra further argues that both the Courts
below have consistently held that the plaintiff acquired
valid title over the suit property followed by possession by
way of auction purchase of the suit land in the execution
case since 1949. The Courts below also held that the
contesting defendants could not establish their title or
possession over the suit property. Under such
circumstances, the natural corollary would have been to
declare the title of the plaintiff and for directing correction
of the record of rights but both the Courts below dismissed
the suit purely on technicalities.
12. Mr. A.R. Dash, learned AGA would argue that
the school in question having been aided and taken over
by the State Government and the suit land being
admittedly recorded in the name of the State in the Hal-
ROR the notice under Section 80 of CPC is mandatory in
view of the relief claimed by the plaintiff. Service of such
notice not having been validly proved, the suit was rightly
dismissed.
13. Mr. B. Pattanaik, while making similar
arguments as the State counsel argues that the suit land
is under the possession of the school wherein, a portion is
used as playground and the building situates over another
portion. The plaintiff claims title on the basis of an
execution case in which the defendants were not parties
and therefore, any order passed therein is not binding on
them.
14. In view of the rival contentions noted above and
the ground on which the suit was dismissed by the trial
Court and confirmed by the first appellate Court, it is
evident that the first question that falls for consideration is
the maintainability of the suit vis-a-vis compliance of
Section 80 of CPC. In this regard, it is to be noted that the
original plaint was silent with regard to the service of
notice but by way of amendment on 19.08.1993, it was
averred that notice under Section 80 of CPC was validly
served.
15. Further, the first appellate Court permitted the
plaintiff to adduce additional evidence in the form of copy
of the Section 80 of CPC notice as well as the postal
receipts which were marked as Exhibits-10, 11 and 11/F
respectively. The first appellate Court was not inclined to
accept such evidence on the ground that copy of the notice
does not bear the date on which it was sent and there was
some tampering. It was also held that the details of the
relief claimed and all the facts relating to the cause of
action were not mentioned in the notice.
16. Copy of the notice marked Exhibit-10 reveals
that the advocate for the plaintiff intimated that the plaint
was annexed to the notice and such notice was issued to
the Headmaster of the school in question and to
defendant Nos.3, 4 and 5. Some AD cards are available in
the case record. As already stated, the first appellate Court
did not deem it proper to place any reliance on such
evidence. This Court would not like to enter into the
controversy as regards the acceptability of the evidence so
adduced by the plaintiff. It would rather be proper to first
consider whether such notice was mandatorily required to
be served on the defendants or not. In this context, it
would be apposite to refer to the relief claimed by the
plaintiff in the plaint under paragraph-8 which is
reproduced below:-
"a. Let it be declared that the entry of the
name of the defendant No.1 in the Hal
settlement ROR in respect of the suit schedule
land is illegal and wrong and the plaintiffs
title be declared in respect of the said suit
land.
b. The tenant name in column-2 of the Hal
Settlement ROR be corrected by putting the
name of the plaintiffs and the defendant No.1
name be deleted from the said column and
accordingly the Tahasildar, Jagatsinghpur be
directed to correct the said settlement ROR.
c. Let the defendant No.1 to 5 may be
permanently restrained from going upon the
suit land and from interfering with the
peaceful possession of the plaintiffs over the
suit land and from making any construction
and structure over the suit land.
d. If it is found, the plaintiffs are being
dispossessed during the pendency of the suit
possession may be recovered and delivered to
them through Court.
e. Cost of the suit be decreed against the
defendants.
f. Any other reliefs to which the plaintiffs
are entitled in law also decreed in favour of
the plaintiffs."
17. The relief claimed under serial Nos. (a) and (b)
quoted above are relevant for the present discussion. It is
evident that the plaintiff's claim for declaration that the
entry of the name of defendant No.1 in the Hal-ROR is
illegal and wrong is not an independent or isolated relief
but the same is followed by the claim of declaration of his
title over the suit land. In other words, the declaration
sought for in respect of defendant No.1 is entirely
dependent on the plaintiff's claim of title. To put it
differently, the plaintiff can only succeed in the suit if he
can prove his title over the suit property. If he is held to
have established his title then, all other reliefs claimed by
him become consequential.
18. The trial Court has held the suit to be one for
correction of Hal-ROR by declaring the recording as illegal.
This, in the considered view of this Court is a fundamental
error in view of what has been discussed hereinbefore.
Regardless of framing of the relief in the plaint, fact
remains that the central relief claimed by the plaintiff is
declaration of his own title as, without such declaration,
the other reliefs cannot be conceived of.
19. If such be the case, it cannot be said that the
plaintiff was obliged to serve notice under Section 80 of
CPC on the State-defendants impleaded as parties. There
is no quarrel with the proposition that service of notice
under Section 80 is mandatory, where any relief is claimed
against the Government or public officers. However, the
position would be different where no relief is claimed
against the Government or public officers even though
they have been arrayed as parties. As already stated, the
main relief was with regard to declaration of title of the
plaintiff as against defendant No.1. If the plaintiff
succeeds, the other relief such as correction of Hal-ROR is
rendered consequential entirely flowing from the main
relief. Addressing a similar question, the Gauhati High
Court in the case of Anil Pantati and Ors. v. Upen
Kumar Saikia1 held that once the suit was filed against
the public officer without any relief being claimed, no
notice shall be required.
20. Even otherwise, it has been held that Section 80
notice is a condition precedent but nevertheless being a
mere procedural requirement does not go to the root of the
jurisdiction in the true sense of the term and that it is
being capable of being waived by the defendants and on
such waiver, the Court gets jurisdiction to entertain and
try the suit. Reference can be had to the judgment of
Supreme Court in the case of State of A.P v. Pioneer
Builders2 in this regard, wherein the following was
observed:-
"19. Bearing in mind the aforenoted legal position,
we advert to the facts in hand. As noted above,
the Subordinate Judge, vide order dated 2-2-1993
came to the conclusion that "there was no tenable
ground to refuse the relief asked for". Though
there may be some substance in the submission of
Mr Chaudhari, learned Senior Counsel appearing
for the State, that the order allowing the
application, seeking dispensation of the
requirement of notice, is cryptic but the fact
remains that by allowing the application, after
hearing the defendant State, the Judge has
(CRP (IO)/241/2022
(2006) 12 SCC 119
opined that the suit is for the purpose of obtaining
an urgent and immediate order. Had the
satisfaction been against the contractor, the court
was bound to return the plaint to the contractor
for re-presentation after curing the defect in terms
of sub-section (1) of Section 80. Although we do
not approve of the manner in which the afore-
extracted order has been made and the leave has
been granted by the Subordinate Judge but
bearing in mind the fact that in its reply to the
application, the State had not raised any specific
objection about the maintainability of the
application on the ground that no urgent and
immediate relief had either been prayed for or
could be granted, as has now been canvassed
before us, we are of the opinion that having
regard to the peculiar facts and the conduct of
both the parties it is not a fit case where the
matter should be remanded back to the
Subordinate Judge for reconsideration. We find it
difficult to hold that the order passed by the
Subordinate Judge on the contractor's application
under Section 80(2) CPC was beyond his
jurisdiction. Accordingly, we decline to interfere
with the finding recorded by the High Court on
this aspect of the matter. The High Court has held
that having participated in the original
proceedings, it was not now open to the State to
raise a fresh issue as to the maintainability of the
suit, in view of waiving the defect at the earliest
point of time. The High Court has also observed
that knowing fully well about non-issue of notice
under Section 80 CPC the State had not raised
such a plea in the written statement or additional
written statement filed in the suit and, therefore,
deemed to have waived the objection. It goes
without saying that the question whether in fact,
there is waiver or not necessarily depends on the
facts of each case and is liable to be tried by the
court, if raised, which, as noted above, is not the
case here."
21. In the instant case, the defendant Nos.3, 4 and
5 are public officers. Defendant No.3 joined defendant
Nos.1 and 2 to file written statement while no written
statement was filed by defendant Nos.4 and 5. In the
written statement so filed no plea regarding non-service of
notice was taken. Thus, the public officers arrayed as
parties have not raised this question for which they must
be deemed to have waived the requirement. A learned
Single Judge of the Allahabad High Court in the case of
Ishtiyaq Husain Abbas Husain Vs. Zafrul Islam Afzal
Hussain & Others3, held as follows:-
"It appears to me that the plea of want of notice is
open only to the Government and the officers
mentioned in section 80 and it is not open to a
private individual. In this particular case the State
Government did not even put in appearance. The
notice, therefore, must be deemed to have been
waived."
22. Thus, viewed from any angle, the finding of both
the Courts below that the suit was bad for non-service of
notice under Section 80 is untenable. Substantial question
of law No.1 and 4 are answered accordingly.
23. As already stated, both the Courts below found
that the plaintiff established his valid title over the suit
property having purchased the same by way of auction
AIR 1969 Alld. 161
purchase from its lawful owner way back in the year 1949.
The contesting defendants on the other hand, despite
adducing additional evidence could not establish their
title. Therefore, as between the plaintiff and contesting
defendants, both the Courts below held that the plaintiff
has title over the property. Having held so the suit was
dismissed on technical grounds. The finding of the Courts
below regarding title of the plaintiff has not been
questioned by the contesting defendants at all and must
therefore, be treated as final. It therefore, becomes
academic to delve into the question as regards acceptance
of the additional evidence adduced by the defendants in
support of their claim of title in the form of sale deeds
dated 08.06.1931 and 03.07.1931.
24. As regards the question of limitation, the first
appellate Court held that the Hal-ROR having been
published on 10.04.1985, the suit was not filed within
three years for which the same is barred by limitation.
This Court is unable to accept the finding for
the reason that as already stated, this is a suit primarily
for declaration of title wherein correction of ROR is a
consequential relief. It has been consistently held by this
Court that the suit for correction of ROR based on
antecedent title can always to be filed even beyond the
period of limitation as the central question to be
determined is the title with the relief of correction being
consequential thereof. For such reason therefore, the first
appellate Court must be held to have committed an error
of law in holding the suit to be barred by limitation. The
substantial question Nos.2 and 3 are answered
accordingly.
25. Thus from a conspectus of the analysis of facts
and law as well as the contentions raised, this Court is of
the view that both the Courts below have erred in
dismissing the suit despite holding the plaintiff to have
established his valid title and possession over the suit
property. The impugned orders therefore, warrants
interference.
26. In the result, the appeal is allowed. The
impugned judgments are set aside. The suit of the plaintiff
is decreed by declaring his title over the suit property and
granting all the consequential reliefs claimed by him.
..............................
Sashikanta Mishra
Judge
Orissa High Court, Cuttack.
The 31st of October, 2025/Puspanjali Ghadai, Jr. Steno
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack.
Date: 31-Oct-2025 18:05:52
