JUDGMENT :

Dr. B.R.Sarangi, J.

This is an intra-Court appeal preferred by the appellant to set aside the order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014 setting aside the order dated 21.01.2014 passed by the learned Civil Judge (Sr. Division), Kendrapara rejecting the plaint filed by the respondents in C.S. No.487/2013.

2. The factual matrix of the case in hand is that the Ex-Landlord, Kiran Kumar Mitra and his co-sharers inducted the grandfather of the appellant as a tenant by accepting rent and salami in respect of Sabik Plot No.352 under Sabik Khata No.228 corresponding to Hal Plot No.642 under Hal Khata No.458 and LR Plot No.537/1020 measuring area Ac. 0.05 decimal. The suit property was converted to Bari from Anabadi land and a house was constructed over the same wherein his family has been living by earning their livelihood from Tin business. In 1949 the appellant’s grandfather expired and his son Sk. Wadu (father of appellant) went on possessing the suit property along with the residential house. In a family settlement in 1972 the suit property fell to the share of the appellant whereafter he continued to possess the same as the residence and Tin shop. Consequently, the appellant had acquired occupancy right over the suit property in terms of Section 23 of the Orissa Tenancy Act. When the suit property was wrongly recorded in favour of the State, the appellant filed Title Suit No.219/1997 on 29.07.1997 in the court of Civil Judge (Sr. Division), Kendrapara praying for declaration of his occupancy right over the suit land. The said suit was decreed on contest declaring the title of the appellant over the suit property on 07.11.2000. Against such decree, the State and Tahasildar preferred Title Appeal No.1/2001 which was dismissed on 17.01.2003 declaring the occupancy right of the appellant over the suit property.

Respondent no.1 purchased a piece of land from one Ratnakar Sethy on 08.01.2004 which was adjacent to the suit property and as such he had never objected to the possession of the appellant over the suit property on the basis of the aforesaid civil court decree. The suit property was mutated in the name of the appellant on the basis of the aforesaid decree of the civil court in Mutation Case No.1059/2005. More so, in mutation proceeding also no objection was filed by respondent no.1 and as such Tahasildar admitted the decree of the civil court and mutated the suit property in favour of the appellant by accepting the title. Subsequently, respondent no.1 purchased a portion of the suit property (8 Kadies) from the appellant on 08.01.2007 admitting his right, title, interest and possession and the sale deed clearly disclosed all the aforesaid pending litigations. Respondent no.1 was very much a signatory to the aforesaid sale deed wherein there was a clear description of the concluded civil litigations which had remained unchallenged. Respondent no.1 mutated his aforesaid purchased property of 8 Kadies pursuant to the order dated 10.08.2007 in Mutation Case No.793/2007 and mutation ROR bearing No.435/105 under separate plot No.462/1194 was issued and accordingly, rent was paid separately. At this point of time, respondent no.1 filed C.S. No.487/2013 on 07.11.2013 to set aside the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and in T.A. No.1/2001 along with other prayers. He also filed Second Appeal (RSA No.417/2013) on 11.11.2013 challenging the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and in T.A. No.1/2001 along with Misc. Case No.789/2013 praying for leave to appeal and Misc. Case No.749/2013 for condonation of delay. In the Second appeal, respondent no.1 did not disclose the fact that he had already preferred C.S. No.487/2013 to set aside the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and T.A. No.1/2001 along with other prayers. When the suit was taken up for admission, during course of hearing, the appellant appeared suo motu