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Judgment
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.
Heard Mr. D.P.Mohanty, learned counsel for the plaintiff-petitioner and Mr. D.K.Mohanty, learned counsel for the contesting Opposite Party.
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.
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.
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.
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.
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.
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.
In the result, the CMP is allowed. The impugned order is hereby set aside.