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2019 Supreme(Ori) 523
IN THE HIGH COURT OF ORISSA AT CUTTACK
A.K.RATH, J.
Sindhu Pradhan (Dead) And Others — Appellant
Versus
State Of Orissa And Others — Respondent
RSA No. 518 of 2003
Decided on : 28-06-2019
For the Appellant :Mr. Budhiram Das, Advocate
For the Respondent:Mr. Swayambhu Mishra, Ms. Ramakanta Mohanty, Ms. Sumitra Mohanty, Advocates
Mandatory nature of the notice under Order 1 Rule 8 CPC for the trial of the suit.
Headnote:
O.E.A Act - Communal Land - O.E.A Act, Order 1 Rule 8 CPC - [O.E.A Act, Order 1 Rule 8 CPC] - The court held that the notice under Order 1 Rule 8 CPC is mandatory and an essential pre-condition for the trial of the suit. The notice must disclose the nature of the suit and the reliefs claimed therein in order to enable interested parties to get themselves impleaded as parties to the suit. The suit was remanded for de novo trial after setting aside the impugned judgments due to non-compliance with the provisions of Order 1 Rule 8 CPC.
Fact of the Case:
Plaintiffs represented villagers of a communal land and filed a suit against defendants regarding the settlement of the land in favor of the defendants and an ex parte decree passed in a previous case.
Finding of the Court:
The court found that the suit was not compliant with the mandatory provision of Order 1 Rule 8 CPC, and therefore set aside the impugned judgments and remanded the suit for de novo trial.
Issues: Non-compliance with Order 1 Rule 8 CPC, validity of settlement in favor of defendants, and binding nature of the ex parte decree.
Ratio Decidendi: The notice under Order 1 Rule 8 CPC is mandatory and an essential pre-condition for the trial of the suit. The notice must disclose the nature of the suit and the reliefs claimed therein in order to enable interested parties to get themselves impleaded as parties to the suit.
Final Decision: The impugned judgments were set aside, and the suit was remanded to the trial court for de novo trial after compliance with the provisions of Order 1 Rule 8 CPC.
JUDGMENT :
A.K.Rath, J.
This appeal at the instance of the plaintiffs assails the confirming judgment of the learned Civil Judge (Senior Division), Puri in Title Appeal No.7/55 of 1999/97.
2. Plaintiffs instituted the suit in their representative capacity. They represent the villagers of village Pratap Ramachandrapur Samil Basantapatana. Case of the plaintiffs was that the suit land originally recorded in the name of the predecessors-in-interest of defendants 2 to 4. The land vested in the State on 13.04.1961 free from all encumbrances. The suit land is communal in nature. The same was recorded in the name of the State in 1977 ROR under Rakhit Khata. While matter stood thus, defendants 2 to 4 filed Lease Case Nos.1447/64 and 389/70 before the Addl. Tahasildar for settlement of the land in their favour. The Addl. Tahasildar settled the land in their favour. They used to pay rent to the Government. Thereafter, defendants 2 to 4 instituted C.S No.54 of 1979 in the court of the learned Sub-Judge, Puri against the Collector, Puri. The suit was decreed ex-parte. The ROR was prepared in their names. When defendants created disturbance, they instituted the suit for declaration that the orders passed in OEA Lease Case Nos.1447/64 and 389/70 are illegal and for a declaration that the ex parte decree passed in O.S. No.54 of 1979 is not binding on the plaintiffs.
3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. It was pleaded that after vesting, they could not take steps for correction of ROR. They filed Lease Case Nos.1447/64 and 389/70 before the competent authority. In order to rectify the erroneous entries in the current settlement ROR, they filed O.S. No.54/79 and accordingly entries were rectified. The suit is barred by limitation, res-judicata and under Order 1 Rule 8 CPC.
4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court came to hold that the suit is not barred by limitation. The notice under Order 1 Rule 8 CPC is defective. There was no due proclamation in lease case. Mere use of the suit land for a long period of time does not confer right inasmuch as the plaintiffs have failed to prove express or implied grant or an inference of implied grant or dedication in their favour. The settlements in favour of defendants 2 to 4 are valid. Held so, it dismissed the suit. Unsuccessful plaintiffs assailed the judgment and decree before the learned Civil Judge (Senior Division), Puri, which was eventually dismissed. It is apt to state here that during pendency of the appeal, appellants 1 and 5 died, where after their legal representatives have been brought on record.
5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.1 to 5 of the appeal memo. The same are -
"(1) Whether the leaned courts below committed serious illegality in holding that the civil court has no jurisdiction to examine the correctness of the orders passed by the O.E.A authority is vitiated for not keeping in mind the distinction between the provisions of the O.E.A Act and lease principles and whether the Civil Court has jurisdiction to question the settlement under lease principles ?
(2) Whether the learned courts below acted illegally in holding that the Civil Court has no jurisdiction to re-open the matter in view of the order passed by the consolidation authorities without keeping in mind the prayer made in the suit and the settled portion of law that consolidation authorities have no jurisdiction to declare any order passed by the Civil Court or the revenue courts as invalid ?
3. Whether in view of accepting the pleadings and evidence of P.Ws that the villagers are using the suit land for different communal purposes since the time of their fore fathers, the learned courts below should have held that the plaintiffs have acquired communal right over the suit land by implied grant inas
