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High Court Of Orissa
P. C. MISRA
LUCY NARONA - Appellant
Versus
RAGHUNATH JEW BIJE - Respondent
Second Appeal 151 Of 1985
Decided On : 06/29/1992
CIVIL PROCEDURE CODE - AMENDMENT OF PLAINT - SUIT FOR INJUNCTION - DESCRIPTION OF SUIT PROPERTY - NECESSARY PARTIES - RES JUDICATA.
Fact of the Case:
Plaintiffs filed a suit for permanent injunction restraining the defendant from dispossessing them from the suit land and cutting and removing trees. The defendant claimed that she had gifted the suit land to her daughter and had no subsisting title. The trial court dismissed the suit holding that the plaintiffs failed to prove their title and possession over the suit land. The lower appellate court allowed the appeal and held that the defendant could be restrained as she had no subsisting title to the suit land.
Finding of the Court:
The High Court held that the suit was incompetent for want of necessary parties and no effective decree could be passed in respect of the suit property as its description was not sufficient for its identification. The court also held that the observations recorded by the lower courts as regards the respective title and possession of either of the parties would not operate as res judicata as between the parties in any future litigation.
Issues: 1. Whether the suit was incompetent for want of necessary parties? 2. Whether an effective decree could be passed in respect of the suit property? 3. Whether the observations recorded by the lower courts as regards the respective title and possession of either of the parties would operate as res judicata as between the parties in any future litigation?
Ratio Decidendi: 1. The defendant had transferred her gifted land to different persons and had no subsisting title in the disputed plot. The transferees were necessary parties to the suit as any decision on the location of the suit land would affect their interest. 2. The description of the suit property as given in the plaint was not sufficient for its identification. Even if the court passed a decree in favor of the plaintiffs, the same could not be enforced against the defendant as its identification was not possible. 3. The observations recorded by the lower courts as regards the respective title and possession of either of the parties would not operate as res judicata as between the parties in any future litigation, as the suit was dismissed for want of necessary parties and no effective decree could be passed.
Final Decision: The High Court allowed the appeal, set aside the judgment of the lower appellate court, and held that the suit was liable to be dismissed.
P. C. MISRA, J.
( 1 ) THE defendant in O. S. No. 85 of 1980-I of the Court of Additional Subordinate Judge, Puri is the appellant in this appeal against the reversing judgement passed by the second Addl. District Judge, Puri in Title Appeal No. 74,183 of 1983/82. The suit is one for permanent injunction restraining the present appellant from dispossessing the plaintiffs from the suit land and from cutting and removing the trees standing thereon.
( 2 ) THE case of the plaintiffs is that plaintiff No. 1 is a deity and plaintiff No. 2 is the head of the institution and marfatdar of the deity. The suit properties are said to be originally belonging to L. G. Naronah who acquired the same by permanent lease on 5-1-1950 from one Durga Charan Jagdevray and thereafter he sold the property to plaintiff No. 1 through plaintiff No. 2 as its marfatdar by a registered sale deed dated 18-10-1965 on receipt of proper consideration pursuant to which the plaintiff was put in possession and he has been possessing the same all through. The disputed plot according to the plaintiffs was a vast sandy area near the sea and was lying waste. After purchase plaintiff No. 2 claims to have reclaimed the said area by raising casuarina and cashew nut plantation as a result of which it became highly productive giving good profits. Alternatively the plaintiffs have claimed that in the event it is found that the suit land does not appertain to their purchased area, they having been in possession thereof for more than the statutory period, have acquired valid title by adverse possession. It has been further alleged that the defendant is the daughter of the said L. G. Naronah who had gifted a portion of the suit plot No. 15 to her in the year 1961. According to the plaintiffs the said area gifted to the defendant was away from the land sold to the plaintiffs which is completely separate having no connection whatsoever with the suit land. It has, therefore, been claimed that the defendant has no manner of right, title and interest in respect of the suit land or the trees standing thereon. The plaintiffs have alleged that the defendant has been laying false claim over the suit land being instigated by some persons against whom the plaintiffs had filed O. S. No. 164/79 in the Court of Subordinate Judge, Puri.
( 3 ) THE defendant filed a written statement denying all the plaint allegations. She claims to have got Ac. 75. 00 acres of land from her late father by a registered deed of gift dated 20-12-61 and continued to possess the same. She has mutated her name in the Mutation Case No. 55/ 77 and subsequently she has also been recorded in the record of rights in respect of the gifted properties. In a ceiling proceeding 30 acres out of' the aforesaid area of 75 acres were vested in the State Government as ceiling surplus and the defendant was allowed to possess the balance 45 acres of land. Out of the said 45 acres, the defendant has sold away 10 acres each, to one Subash Chandra Samantray and Biswanath Prusty under two separate sale deeds dated 25-3-75 and 31-3-76 respectively. The balance 25 acres of land has been gifted by her to the minor daughter of her brother. Thus the case of the defendant is that she has no subsisting right, title and interest in the suit property and has been unnecessarily impleaded in the suit. On these allegations she prays for dismissal of the suit.
( 4 ) THE learned trial Court framed the issues which arise out of the pleadings and after considering the evidence adduced by the parties came to the conclusion that the plaintiffs have failed to prove the location of the suit land and that it is a part and parcel of their purchased land. Consequently the Court found that the plaintiffs have not been able to prove their title and possession over the suit lands. Having so found, the Court dismissed the suit as not maintainable and held that the plaintiffs are not entitled to any of the reliefs claimed. The plaintiffs thereafter carried up t
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