Gouri Shankar Behera (Dead) Through His Lrs. & Another vs State Of Orissa & Ors

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.

For convenience, the parties are referred to as per their respective status before the trial Court.

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.

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.

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?”

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.

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.

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”

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.

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.

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.

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.

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.

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.

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.

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.