Taranga Suna @ Ganda vs Amara Suna @ Ganda And Others

A.C. Behera, J

The 2nd appeal has been preferred against the confirming judgment.

The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.82 of 1995 and he was the sole appellant before the 1st appellate court in the 1st appeal vide T.A. No.24 of 1998.

The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.82 of 1995 and they were the respondents  before  the  1st   appellate  court  in  the  1st   appeal  vide  T.A.

The suit of the plaintiff(appellant in this 2nd appeal) against the defendants (respondents in this 2nd appeal) vide T.S. No.82 of 1995 was a suit for declaration and confirmation of possession.

The suit properties are Plot No.437 Ac.0.310 decimals, Chaka No.94 under Consolidation Khata No.12 in Mouza Khairmal under Binika Police Station.

According to the pleadings of the plaintiff, the suit properties were originally the service tenure land, i.e., Chaukidari Mafi land. The said suit properties were settled in the name of the plaintiff after abolition of Chaukidari Jagir system as per Village Policy Abolition Act, as he (plaintiff) was the Chaukidar of the suit village Khairmal, under Binika Police Station. The father of the defendants had no manner of right, title, interest and possession over the suit properties. The father of the defendants, i.e., Kapila Ganda has expired leaving behind the defendants as his successors. There was/is no sale deed in respect of the suit properties in favour of the father of the defendants by the plaintiff. He(plaintiff) had litigation with one Govinda Suna of his village Khairmal. Though the father of the defendants had no interest in the suit properties, but the name of the father of the defendants has been recorded erroneously in the consolidation RoR of the suit properties due to the misconception of the Consolidation Authorities. Such recording of the suit properties by the Consolidation Authorities in favour of the father of the defendants was objected by the plaintiff by filing a case before the Consolidation Officer, Singhijuba, but, the Consolidation Officer Singhijuba took the signature of the plaintiff in some blank papers by giving him(plaintiff) false impression that, the suit properties will be recorded in his favour during the consolidation operation, as the suit properties belong to him(plaintiff). So, on good faith, the plaintiff put his signatures in some blank papers before the Consolidation Officer, but, subsequently, he (plaintiff) found that, the suit properties have been recorded in the name of the father of the defendants erroneously by the Consolidation Authorities. Then, he (plaintiff) preferred an appeal before the Deputy Director of Consolidation, but the said appeal of the plaintiff was dismissed. Thereafter, he(plaintiff) filed revision before the higher authorities of the consolidation, but his revision was also dismissed erroneously. Therefore, without getting any way, he (plaintiff) approached the civil court by filing the suit vide T.S. No.82 of 1995 against the defendants praying for declaration of his right, title and interest over the suit properties and to confirm his possession on the same and to declare that, the name of the father of the defendants, i.e., Kapila Ganda has been recorded in the consolidation RoR of the suit properties erroneously.

Having been noticed from the trial court in the suit vide T.S. No.82 of 1995, only the defendant no.1 contested the same by filing his written statement, but, whereas the other defendants were set ex parte.

In the written statement of the defendant no.1, he(defendant no.1) denied the allegations alleged by the plaintiff in his plaint against his father Kapila Ganda. The specific case/plea of the defendant no.1 in his written statement was that, some years after the completion of 4th Settlement Operation, i.e., much prior to the consolidation operation, his father, i.e., Kapila Ganda purchased the suit properties from the plaintiff on payment of due consideration amount and the plaintiff delivered possession of the suit properties to his father and accordingly, his father was possessing the suit properties exclusively as his own right, title and interest thereon till his death. After the death of his father, he (defendant no.1) being the successor of his father, he (defendant no.1) has been possessing the suit properties being the owner thereof. On the basis of the ownership and possession of his father Kapila Ganda, during the consolidation operation, the final consolidation RoR of the suit properties was published in the name of his father Kapila Ganda exclusively and he (defendant no.1) has/had been paying the rent of the suit properties to the Government. During the consolidation operation, when the Consolidation Officer passed order for recording the suit properties exclusively in the name of his father Kapila Ganda, then, the plaintiff challenged the said order by preferring a consolidation appeal bearing No.117 of 1981 before the Deputy Director of Consolidation and that, appeal of the plaintiff was dismissed. Thereafter, the plaintiff filed a revision against the same and that revision was also dismissed and accordingly, the orders for recording the suit properties exclusively in the name of the father of the defendant no.1 by the Consolidation Authorities were confirmed. As such, the defendant no.1 being the successor of his father, he has right, title, interest and possession over the suit properties, but, the plaintiff has no right, title, interest and possession in the same. For which, the plaintiff has no cause of action for filing the suit. Therefore, the suit of the plaintiff is liable to be dismissed with cost.

Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether ten numbers of issues were framed by the trial court in the suit vide T.S. No.82 of 1995 and the said issues are:-

ISSUES

Whether the plaintiff is having any right, right, or interest and possession over the suit land?

Whether the defendant no.1’s father or the defendant no.1 had/has right, title and interest and possession over the suit land?

Whether there is any sale or sale deed in favour of the deceased father of defendant no.1?

Whether the consolidation final R.O.R. in the name of the defendant no.1’s father is lawful?

Whether the plaintiff was ever Chaukidar of the suit village?

Whether the suit is barred by limitation?

Whether the suit maintainable in its present forum?

Whether there is any cause of action for the suit land?

Whether the suit is hit under the principle of res judicata?

To what relief, if any?

In order to substantiate the aforesaid reliefs sought for by the plaintiff in the suit vide T.S. No.82 of 1995 against the defendants, he (plaintiff) examined three witnesses from his side including him(plaintiff) as P.W.1 and relied upon the documents vide Exts.1 to 5.

On the contrary, in order to defeat/nullify the suit of the plaintiff, the contesting the defendant no.1 examined four witnesses on his behalf including him as D.W.1 and exhibited several documents vide Exts.A to D1 from his side.

After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue nos.1, 2, 3, 4 and 9 against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in the said vital issue nos.1, 2, 3, 4 and 9 against the plaintiff, the trial court dismissed the suit of the plaintiff vide T.S. No.82 of 1995 on contest against the defendant no.1 and ex parte against the defendant nos.2 to 4 without cost, as per its judgment and decree dated 17.03.1998 and 02.04.1998 respectively assigning the reasons that, when the Consolidation Authorities, i.e., Consolidation Officer, Deputy Director of Consolidation and the Board of Revenue have given their consistent findings in dismissing the objection case, appeal and revision of the plaintiff, as per its final orders vide Exts.B and C and when after dismissal the revision of the plaintiff by the Board of Revenue, the suit has been filed by the plaintiff and when in the evidence of the plaintiff (P.W.1), he has admitted possession of the father of the defendants over the suit properties by deposing in Paragraph-12 of his deposition that, “the father of the defendants was possessing the suit properties soon after the  completion  of  4th  Settlement  Operation  as  well  as  at  the  time  of Consolidation Operation”, then, the plaintiff has no right, title, interest and possession over the suit properties. Because, the consolidation authorities being invested with the powers of the civil court as per Sections 4 and 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentations of Land Act, 1972 have decided the title of the suit properties in favour of the father of the defendants, then, the said findings of the Consolidation Authorities cannot be unsettled by the civil court through the suit of the plaintiff, for which, the suit of the plaintiff is liable to be dismissed.

On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.82 of 1995 passed by the trial court against him(plaintiff), he(plaintiff) challenged the same by preferring the 1st appeal vide T.A. No.24 of 1998 being the appellant against the defendants by arraying them (defendants) as respondents.

After hearing from both the sides, the 1st  appellate court dismissed that 1st appeal vide T.A. No.24 of 1998 of the plaintiff on contest without cost concurring / accepting the findings and observations made by the trial court  against  the  plaintiff as  per  its  judgment  and  decree  dated 17.03.1998 and 02.04.1998 respectively passed in T.A. No.24 of 1998.

On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the plaintiff vide T.A. No.24 of 1998, he (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants by arraying them (defendants) as respondents.

This 2nd appeal was admitted on formulation of the following substantial questions of law :-

(i) Whether in the absence of pleadings with regard to the exact time from which the adverse possession began, could the defendant be said to have proved acquisition of his title by adverse possession?

(ii) Whether preparation of the record of right by a Consolidation Authority raised a presumptive value with regard to the title by adverse possession in favour of the respondents?

I have already heard from the learned counsels of both the sides.

It is the own case of the plaintiff (appellant in the 2nd appeal) that, during consolidation operation, he had filed objection case before the Consolidation Authorities against the father of the defendants, i.e., against Kapila Ganda for recording the suit properties in his name.

After taking into account, the evidence and documents of the parties, the consolidation authorities have passed orders for recording the suit properties in the name of the father of the defendants, i.e., in the name of Kapila Ganda observing that, the said Kapila Ganda has been possessing the suit properties by purchasing the same from the plaintiff and accordingly, the plaintiff has admitted the possession of Kapila Ganda over the suit properties in his evidence before the consolidation authorities.

It appears from the pleadings and evidence of the parties that, the plaintiff had challenged the order of the Consolidation Officer concerning the orders for recording the suit properties in the name of the father of the defendants by filing an appeal vide Consolidation Appeal No.117 of 1981 before the Deputy Director of Consolidation. After hearing, that Consolidation Appeal No.117 of 1981 was dismissed and the order of the Consolidation Officer for recording the suit properties in the name of the father of the defendants, i.e., Kapila Ganda was confirmed. Then, the plaintiff challenged that order of the Deputy Director of Consolidation passed in Consolidation Appeal No.117 of 1981 by filing revision vide Consolidation Revision No.48 of 1982 before the Board of Revenue, but, that revision of the plaintiff was also dismissed and the orders of the Consolidation Officer and the Deputy Director of Consolidation in favour of the father of the defendants was confirmed. Thereafter, the consolidation RoR of the suit properties was published in the name of the father of the defendants, i.e., in the name of Kapila Ganda.

Having been defeated from all the forums of Consolidation, he(plaintiff) filed the suit vide T.S. No.82 of 1995 against the defendants, i.e., those are the children and successors of Kapila Ganda after the death of Kapila Ganda praying for declaration of his right, title and interest over the suit properties and to confirm his possession on the same and to declare that, the name of Kapila Ganda has been wrongly recorded in the Consolidation RoR of the suit properties.

It is the settled propositions of law that, once the parties worked out their rights before the Consolidation Authorities and exhausted their remedies under the Orissa Consolidation of Holdings of Prevention of Fragmentations and Land Act, 1972, they (parties) cannot re-agitate the same questions over and again in the civil court, because the said questions stand finally concluded by the decision of the Consolidation Authorities, as, the decisions of the Consolidation Authorities on the question of right, title and interest of the parties in respect of the suit properties would operate as res judicata and the civil court will have no jurisdiction to hear and decide the said questions/matters afresh.

Here in this appeal / suit at hand, the parties have already worked out their rights/controversies relating to their title and possession over the suit properties before the Consolidation Authorities and they have exhausted their remedies under the Consolidation Act by filing objection case, appeal and revision, as stated above, for which, the plaintiff is precluded/debarred under law to agitate the same question over and again by filing the suit vide T.S. No.82 of 1995. Because, the said questions, (those have been raised in the suit) have already been decided/concluded finally by the Consolidation Authorities. For which, the decisions of the Consolidation Authorities for recording the suit properties in the name of the father of the defendants have operated as res judicata against the plaintiff for filing the suit at hand, vide T.S. No.2 of 1995 for the self-same matter. So, the jurisdiction of the civil court is barred under law on the principle of res judicata to hear and decide the present suit of the plaintiff vide T.S. No.82 of 1995 in respect of the suit properties.

On this aspect, the propositions of law have already been clarified by the Hon’ble Courts in the ratio of the following decisions:-

(i) 50(1980)  CLT-337(F.B.)  :  Srinibas  Jena  (and  after him) Madhabananda Jena and others vrs. Janardan Jena and others (para-6)—C.P.C.1908—Section 9 Civil Suit—Once, the parties work out their rights before the consolidation authority and exhaust their remedies under that Act, they cannot re-agitate the same questions over and again in the civil court, and that those questions stand stand finally concluded by the decision of the consolidation authorities.

The decision of the consolidation authorities on the question of right, title and interest, which are matters within their jurisdiction would operate as res-judicata and that being so, the civil court will have no jurisdiction to hear and decide the suit afresh.

(ii) 2019(1) CLR-950 : Laxmidhar Sahu and others vrs. State of Orissa and others—C.P.C., 1908—Section 9 & 11—Res judicata—A decision of the consolidation authorities on the question of right, title and interest, which are matters within their jurisdiction would operate as res judicata and that being so, the Civil Court will have no jurisdiction to hear and decide the suit.

(iii) 63(1987) CLT-347 : Braja Kishore Panda vrs. Damodar Rout and another—C.P.C., 1908—Section 9—The civil court has no jurisdiction to sit in judgment over the decisions of the consolidations authorities and declare those as without jurisdiction. Such decisions are available to be varied by the Higher Forums provided under the consolidation Act.(Para-4)

(iv) 57(1984) CLT – 398 : Hrudananda Panda and another vrs. Dhirendra Behura alias Behera—C.P.C.— Section—Res judicata—Declaration of rights and interests in land by the consolidation authorities—Res judicata in civil court.(Para-9)

(v) 2019(1) OLR-795 :Laxmidhar Sahu and others vrs. State of Orissa and others—OCH &PFL Act, 1972 — Sections 9 and 16—The consolidation authorities have got jurisdiction to decide the questions of right, title and interest, which would operate as res-judicata, civil court has got no jurisdiction to hear and decide the suit afresh.(Para-10)

(vi) 2018(II) CLR-31 : Chhabi Bagh vrs. Saila Bagh(dead) and others—Consolidation RoR—Value thereof—Consolidation RoR holds good for right, title and interest of the recorded tenant. (Para-12)

(vii) 2007(Suppl-1) OLR-276 : Balaram Bhoi and others vrs. Babajee Bhoi and others—OCH& PFL Act, 1972—Right, title and interest of the land-holders—An RoR published by the consolidation authorities cannot be varied or set aside by the civil court.(Para-9)

(viii) 2015(I) CLR-360 : Chintamani Kandi(dead) after him, his  L.Rs.  Para  Dei  and  others  vrs.  Arjun  Kandi  and others—RoR prepared by the consolidation authority—value thereof—RoR is necessary to pronounce the judgment. Because, the consolidation authority having decided appellant’s title in the suit land have recorded in the name of appellants. The title and possession through the same declares. (Para-13)

When, the rights of the parties in respect of the suit properties have already been worked out before the Consolidation Authorities and their all controversies relating to the suit properties have already been exhausted under OCH & PFL Act, 1972 through the decisions of the consolidation authorities by all the forums of the consolidation on the basis of hierarchy and when the claims of the plaintiff concerning his title and possession over the suit properties have been negatived by all the forums of consolidation and when in paragraph-12 of the deposition of the plaintiff (P.W.1), he (plaintiff) has deposed by answering the questions of the learned counsel for the defendant no.1 that, the father of the defendant no.1, i.e., Kapila Ganda was possessing the suit properties after completion of 4th Settlement Operation as well as at the time of commencement of Consolidation Operation, then, at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to (supra), it cannot at all be held that, the judgments and decrees passed by the trial court as well as by the 1st appellate court in dismissing the suit of the plaintiff vide T.S. No.82 of 1995 refusing the prayer of the plaintiff for declaration of his right, title and interest over the suit properties and for confirmation of his possession on the same are erroneous. For which, the question of interfering with the same through this 2nd appeal filed by the appellant does not arise. Therefore, this 2nd appeal filed by the appellant (plaintiff) must fail.

In result, the 2nd appeal filed by the appellant (plaintiff) is dismissed on contest, but without cost.

The judgments and decrees passed by the trial court in T.S. No.82 of 1995 and by the 1st appeal court in T.A. No.24 of 1998 in dismissing the suit of the plaintiff/appellant vide T.S. No.82 of 1995 are confirmed.

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