[Cites 5, Cited by 0]
Orissa High Court
Afr Gouri Shankar Behera (Dead) vs State Of Orissa & Ors on 10 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.387 of 1989
[In the matter of an appeal under Section 100 of CPC from
Judgment and decree dated 24.08.1989 followed by decree
dated 05.09.1989 respectively passed by the learned
Subordinate Judge, Nawapara in Title Appeal No.12/10 of
1986-88 arising out of the judgment dated 23.12.1985
followed by decree dated 08.01.1986 respectively passed by
learned Munshif, Nawapara in T.S. No.15 of 1982]
AFR Gouri Shankar Behera (dead)
Through his LRs. & another ....Appellant
-Versus-
State of Orissa & Ors. .... Respondent
Advocate(s) appeared in this case:-
__________________________________________________________
For Appellant(s) : Mr. M. Faradish, Advocate
For Respondent(s) : Mr. A.R. Dash, AGA
(For defendant no.-1 and 2)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
10th March, 2026
SASHIKANTA MISHRA, J.
This is a plaintiff's appeal against a reversing
judgment. The judgment and decree passed by the
Subordinate Judge, Nawapara on 24.08.1989 followed by
decree in Title Appeal No. 12/10 of 1986-88 is under
challenge whereby, the judgment and decree dated
23.12.1985 and 08.01.1986 respectively passed by the
Munsif in T.S. No. 15 of 1982 was reversed and the
plaintiff's suit for declaration of title and permanent
injunction was dismissed.
2. For convenience, the parties are referred to as
per their respective status before the trial Court.
3. Plaintiff's case is that the suit land originally
belonged to his ancestor Trilochan Behera, who was a
protected Thekadar of village Domjhar. It is pleaded that
said Trilochan Behera excavated the suit tanks about 80
years back pursuant to permission granted by the then
Deputy Commissioner of Raipur District (C.P. & Berar) and
obtained Sanands dated 14.09.1910 and 24.04.1913 in
recognition of such excavation and improvement. According
to the plaintiff, Trilochan Behera had transferred the
Thekadarship to his second son Jagmohan Behera, who
predeceased him. After the death of Jagmohan Behera, the
Thekadarship and the suit properties devolved upon Kalia
Behera, father of the plaintiff, by inheritance. The case of
the plaintiff is that the suit tanks having been acquired and
improved by Trilochan Behera, continued to remain in
possession of his successors, who maintained the same in
the form of water reservoirs and utilised them for
pisciculture and irrigation purposes.
It is further pleaded that in the year 1964,
Kalia Behera partitioned his properties among his three
sons, namely Gourishankar Behera (the plaintiff), Jogeswar
Behera and Brajamohan Behera and in such partition the
suit tanks fell to the share of the plaintiff and his younger
brother Jogeswar Behera. The plaintiff pleads that
thereafter he remained in exclusive, open, peaceful and
uninterrupted possession of the suit tanks, making
improvements from time to time and enjoying the usufructs
thereof. According to him, neither the State nor the Gram
Panchayat ever exercised possession over the suit tanks
and his possession, as well as that of his predecessors,
continued for more than the statutory period, openly and to
the knowledge of the State authorities. In the current
settlement operation the suit lands were erroneously
recorded in the Government Rakhit Khata without the
knowledge and information of the plaintiff or his
predecessors. The plaintiff claims that he came to know
about such wrong recording only when defendant Nos.1
and 2, without any right, title or authority, leased out the
suit tanks in favour of defendant No.3 for pisciculture,
despite his protest. Alleging that the defendants had no
manner of right, title or interest over the suit properties
and that he had perfected his title by long, continuous and
adverse possession, the plaintiff instituted the suit seeking
declaration of his title and permanent injunction
restraining the defendants from interfering with his
possession.
4. The defendants contested the suit. Defendant
No.3 was set ex parte, but defendant No.1 filed written
statement. Defendant no.1 stated that the suit properties
are not the private property of the plaintiff or his ancestors
and that after abolition of intermediary interest the same
vested in the State and were recorded in the Government
Rakhit Khata. It is contended that the suit lands are public
tanks and that the State authorities were competent to deal
with the same. The defendants denied that the plaintiff or
his predecessors had exclusive title or possession over the
suit tanks and dispute the claim of continuous and adverse
possession. It is pleaded that the Sanands relied upon by
the plaintiff do not confer any proprietary right and merely
relate to improvement. The defendants further assert that
the lease granted in favour of defendant No.3 was lawful
and within the authority of the Government. An objection
was also raised regarding maintainability of the suit on the
ground of non-service of notice under Section 80(1) of the
Code of Civil Procedure prior to institution of the suit.
5. Basing on the rival pleadings, the trial Court
framed the following issues for determination:
"1) Whether the plaintiff is entitled to bring the suit?
2) Whether the plaintiff has acquired title over the suit
lands by adverse possession?
3) Whether the suit lands were recorded in the name
of the plaintiff in the 1972 settlement?
4) Whether the suit is maintainable?
5) Whether the suit is barred by limitation?
6) To what other reliefs, if any, is the plaintiff
entitled?"
6. Taking up the issues for consideration, the
trial Court, on appreciation of the oral and documentary
evidence held that the plaintiff had established continuous,
open and uninterrupted possession of the suit tanks from
the time of his ancestors. The trial Court found that the
Sanands dated 14.09.1910 and 24.04.1913, marked as
Exts.1 to 4, being more than thirty years old and produced
from proper custody, carried presumption of genuineness
and supported the case of excavation and improvement by
Trilochan Behera. The evidence of P.Ws. 1 and 2 was
accepted as credible regarding long possession and user of
the tanks for pisciculture and irrigation. The trial Court
further observed that even the defence witnesses admitted
that the plaintiff was in possession and that the Gram
Panchayat had not exercised actual possession over the
suit tanks. On such findings, the trial Court held that the
plaintiff and his predecessors had been in uninterrupted
possession of the suit tanks for more than the statutory
period and that no action had been taken by the State to
dispossess them. Accordingly, it was held that the plaintiff
had perfected his title by adverse possession. The suit was
thus decreed.
7. Being aggrieved, defendant No.3, who had
been set ex parte before the trial Court, carried the matter
in appeal. The First Appellate Court first considered the
question of maintainability of the suit, particularly whether
the suit was bad for non-joinder of necessary parties and
for non-service of notice under Section 80 of the Code of
Civil Procedure. It was held that the suit was not
maintainable as certain co-sharers namely, Biswamber
Behera and Jogeswar Behera and the concerned Gram
Panchayat had not been impleaded as parties and in their
absence, an effective decree could not be passed. It further
held that no notice under Section 80(1) of the Code of Civil
Procedure had been served upon the concerned
Government authorities prior to institution of the suit. On
such findings, the appeal was allowed by setting aside the
judgment and decree passed by the trial Court.
8. Being aggrieved, the plaintiff has preferred
the instant appeal which was admitted on the following
substantial questions of law:
(i) Whether First Appellate Court was correct in
holding that the suit was not maintainable for want of
notice under Section 80(1) of CPC ignoring the leave
granted by the trial Court to file the suit.
(ii)) Whether the First Appellate Court was correct in
holding that the suit was bad for non-joinder of
necessary parties"
9. Heard Mr. M. Faradish, learned counsel for
the plaintiff-appellant and Mr. A.R. Dash, learned AGA for
the defendant no.1 and 2-State/respondent. Even after
repeated opportunities, there was no appearance by
defendant no. 3.
10. Mr. Faradish assails the impugned judgment
by submitting that the reversal of the well-reasoned
judgment of the trial Court is unsustainable in law. He
argues that the First Appellate Court committed grave error
in holding that the suit was not maintainable for non-
service of notice under Section 80(1) of the Code of Civil
Procedure without taking note of the fact that the trial
Court had granted leave to institute the suit without notice.
According to him, once leave under Section 80(2) CPC had
been granted, the requirement of prior notice stood
dispensed with and the suit could not have been dismissed
on that ground.
He further argues that the plaintiff had
claimed declaration of his independent title and injunction
against the State authorities who had leased out the suit
tanks, and therefore the purported co-sharers, namely,
Biswamber Behera and Jogeswar Behera, were neither
necessary nor proper parties. He also argues that in view of
Order I Rule 9 CPC, the suit could not have been dismissed
for non-joinder unless such parties were shown to be
necessary for passing an effective decree.
He further submits that the First Appellate Court did not
examine the findings of the trial Court on the issue of
adverse possession, which had been decided upon detailed
appreciation of evidence.
11. Per contra, Mr. A.R. Dash, learned Additional
Government Advocate for the State, would fairly submit
that so far as the objection under Section 80(1) of the Code
of Civil Procedure is concerned, the First Appellate Court
overlooked the fact that the trial Court had granted leave to
institute the suit without issuance of prior notice. However,
he would argue that the finding of the First Appellate Court
regarding non-joinder of necessary parties deserves to be
sustained. According to him, when the plaintiff himself
pleaded partition among co-sharers and claimed right over
joint family property, the alleged co-sharers and the
concerned Gram Panchayat were necessary parties for
complete and effective adjudication of the dispute. He thus,
submits that even if the finding on Section 80 CPC is
interfered with, the impugned judgment can still be
sustained on the ground of non-joinder of necessary
parties.
12. In view of the rival contentions as noted above,
it is evident that the first question that falls for
consideration is whether the First Appellate Court
committed error in holding that the suit was not
maintainable for want of notice under Section 80(1) of the
Code of Civil Procedure. Perusal of the lower Court case
record reveals that the trial Court on 15.05.1982 granted
leave to the plaintiff to institute the suit without serving
prior notice upon the Government authorities. Once leave
under Section 80(2) CPC is granted, the statutory
requirement of prior notice under Section 80(1) stands
dispensed with. The First Appellate Court, while reversing
the decree, clearly overlooked this material aspect of the
matter and proceeded to hold that the suit was liable to be
dismissed for non-service of notice. The dismissal of the
suit on that ground, therefore, suffers from error apparent
on the face of the record.
13. On the second substantial question of law, this
Court, on perusal of the records finds that during
pendency of the suit, Biswamber Behera, Brajamohan
Behera and defendant No.3 had filed a petition under
Order I Rule 10 CPC seeking impleadment as co-plaintiffs
or co-defendants. Said petition was dismissed on
16.09.1983 as not pressed. Thereafter, no further steps
were taken by them. The trial Court also did not frame any
issue regarding non-joinder of necessary parties. Even
before the First Appellate Court, no specific point was
framed on that aspect.
It further appears that defendant No.3, though
he had entered appearance on certain dates before the trial
Court by filling hazira did not file any written statement
and was set ex parte. The question that therefore arises is,
whether defendant no.3, who did not contest the suit
before the trial Court and the petition of others for
impleadment was dismissed as not pressed, can such plea
of non-joinder be raised at this stage.
It is also to be examined whether, in a case
where the plaintiff has asserted exclusive possession and
found by the trial Court to have perfected title by adverse
possession, the purported co-sharers were necessary
parties to the suit. When the plaintiff claims hostile and
exclusive possession against the State and asserts
perfection of title by lapse of statutory period, the
foundation of the suit is such exclusive possession. In such
circumstances, unless it is demonstrated that no effective
decree could be passed in absence of the said persons, the
suit cannot be held to be bad for non-joinder.
14. On careful consideration of the aforesaid
aspects, this Court finds that so far as the conduct of
defendant No.3 is concerned, as already stated, though he
had entered appearance before the trial Court, he neither
filed written statement nor contested the suit and was
ultimately set ex parte. The petition under Order I Rule 10
CPC filed by Biswamber Behera, Brajamohan Behera and
defendant No.3 seeking impleadment was dismissed as not
pressed on 16.09.1983. Thereafter, no steps were taken by
them. No issue regarding non-joinder of necessary parties
was framed by the trial Court and the suit was adjudicated
on merits. In such circumstances, permitting defendant
No.3 to raise the plea of non-joinder at the appellate stage
would amount to allowing a party, who remained inactive at
trial, to defeat the decree on a technical ground which was
neither pressed nor adjudicated earlier. It is well settled as
per Order I Rule 13 that an objection as to non-joinder of
parties is required to be taken at the earliest opportunity
and before settlement of issues. In absence of such
objection at the trial stage and in absence of any issue
framed thereon, the First Appellate Court ought not to have
dismissed the suit solely on that ground without recording
a clear finding that the alleged parties were 'necessary
parties'.
Even otherwise, the conduct of defendant No.3
clearly attracts the doctrine of waiver and acquiescence.
Having been afforded due opportunity and having
consciously abstained from participating in the trial and
filing written statement, he must be deemed to have waived
his right to object. It is a settled principle that a party
cannot be permitted to take advantage of his own default or
omission. Such being the position, defendant No.3 cannot
now be allowed to raise the plea of non-joinder at the
appellate stage merely because the judgment of the Trial
Court was not favourable to him.
15. In view of the foregoing reasons therefore, this
Court holds that the First Appellate Court erred in
dismissing the suit on the ground of non-joinder of
necessary parties. The finding recorded on that aspect
suffers from legal infirmity and warrants interference. The
second substantial question of law is answered,
accordingly.
16. In the result, the Second Appeal succeeds and
is allowed. The judgment and decree passed by First
Appellate Court is set aside and the judgment and decree
passed by trial Court is confirmed. There shall be no order
as to costs.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 10th March, 2026/A.K. Rana/P.A.
Location: HIGH COURT OF ORISSA, CUTTACK
