IMPORTANT POINT
Ex-parte decree in Title Suit would not bar appellant from maintaining Original Suit in Civil Court.

JUDGMENT

Dr. S. Muralidhar, CJ.—This appeal by the Orissa State Housing Board (OSHB), Bhubaneswar is directed against an order dated 19th November, 1999 passed by the learned Single Judge of this Court in First Appeal (FA) No.260 of 1997. By the said impugned judgment, the learned Single Judge set aside the judgment dated 7th August, 1997 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Original Suit (O.S.) No.333 of 1993–I filed by the present Appellant as a Plaintiff against the Respondent No.1/Defendant No.1 (who was the Appellant in FA No.260 of 1997).

Background facts

2. The aforementioned suit had been filed by the OSHB for a declaration of title in respect of land admeasuring Ac.7.500 decimal in District Khurda, Mouza Chandrasekharpur [which is now within the Bhubaneswar Municipal Corporation (BMC) limits] under Sabak Khata No.303, Plot No.218, out of a larger area of Ac. 184.018 dec of a 1931 settlement which corresponds to Sabak Khata No.472 Plot No.258 and which further corresponds to Hal Khata No.619 Plot No.258/2020 (hereafter ‘the land in question’).

3. The case of the Appellant is that the land in question was Kisam ‘Jhati Jungle’ as recorded in the Record of Rights (RoR). Initially in 1931, it belonged to one Sri Madhusudan Deb, the Raja of Patia and was subsequently vested in the State upon the coming into force of the Orissa Estate Abolition Act (‘OEA Act’). It is stated that since no tenant induction document was filed, the State Government became owner and possessor of the land in question. Subsequently an order dated 4th January, 1954 was issued by the State Government whereby all Khasmahal lands were transferred from the State Government to the Cabinet Department [initially termed as Political and Service (P and S) Department and later as G.A. Department (Respondent No.5)]. Thus the G.A. Department had control over the land in question since 1954. It is claimed by the Appellant that during the 1974 settlement, the land in question was recorded in the name of the G.A. Department.

4. Subsequently, by Notification No.773/72 dated 25th November 1972, all the Government lands included in Bhubaneswar Tahasil were transferred to the management and control of Respondent No.5 including the land in Plot No.218. Later, Ac.31.982 decimal of land appertaining to Plot No.258 and 258/2020 was transferred to the Appellant under Allotment Order No.8318 on 29th April, 1989. The land was to be utilized by the OSHB for construction and sale of houses to individuals in the Lower Income Group (LIG) Housing Scheme. The OSHB was required to pay a premium of Rs.63,96,400/- to the State Government within 60 days from the date of the aforementioned order. Possession of the land consequent upon demarcation of the allotted area was to be made only after payment of premium and execution of the lease deed. Respondent No.1 filed a writ O.J.C.No.3181 of 1989 before the Hon’ble High Court and obtained a stay of construction in Plot No.258/2020.

T.S. No. 5 of 1988

5. As far as Respondent No.1 is concerned, she filed Title Suit (TS) No.5 of 1988 as informa pauperis in 1986, vide Miscellaneous Case No.518 of 1986. That Miscellaneous Case 518 of 1986 was allowed on contest on 6th January, 1988. Thereafter, the plaint was formally registered and numbered as TS No.5 of 1988. The State of Orissa through its Secretary, Revenue Department, the Collector Puri and the Tahasildar, Bhubaneswar were all impleaded in the said Misc. Case. They were the Defendants in TS No.5 of 1988 as well. It is stated that by the time of institution of the aforementioned TS No. 5 of 1988, the land in question stood recorded in favour of the State of Orissa. By a judgment dated 10th January, 1989 of the Civil Judge (Senior Division), Bhubaneswar, TS No.5 of 1988 was decreed ex parte on 10th January, 1989 declaring the title of Respondent No.1 herein in the land in question and confirming her possession. The Defendants to the suit were permanently restr