AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. A.K. Rath, J.
Defendant no.1 is the appellant against a reversing judgment.
Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiff-respondent
instituted the suit for declaration of title, recovery of possession and permanent injunction. Defendant nos.1 and 2 filed separate written statements.
The suit having been dismissed, the plaintiff filed appeal. In appeal, an application for additional evidence to accept the deposition of witnesses
examined in T.S. No.23/89 was filed. Learned appellate court allowed the application, marked the deposition of witnesses as Exts.1 and 2 and
proceeded on the premises that defendant no.1 was examined as P.W.1 in T.S. No.23/89. Calculating his age at the time of deposition, it came to a
finding that defendant no.1 was not minor in the year 1970. It disbelieved that Ext.5 was obtained from him by undue influence and fraud and allowed
the appeal. It is apt to mention here that during pendency of the second appeal, the appellant-defendant no.1 is died. The legal heirs have been
substituted. Â
The second appeal was admitted on the following substantial questions of law.
“(i) Whether the alleged settlement of the suit plot in favour of the father of the plaintiff is under the O.E.A. Act under Section 8-A(1) or under the
common lease principles ?
(ii) Whether the application of the father of the appellant after the enquiry of the statutory period and subsequently by the plaintiff-appellant for the
settlement of the suit plot, it stands on the footing of an individual application to the owner for the lease even though one of the conditions for
entertaining a lease application is that, the individual application must be he who is entitled to file application under the O.E.A. Act is applicable to all ?
(iii) Whether a Jagir land is transferable or not ?â€
Mr. Ramakanta Mohanty, learned Senior Advocate assisted by Mr. Bhaskar Chandra Panda, learned Advocate for the appellants, submitted that
the plea of defendant no.1 was that he was minor at the time of execution of Ext.5 in the year 1970. By exercising undue influence and fraud, the
document was obtained from him. Defendant no.1 was not a witness in T.S. No.23/89. Learned appellate court committed a manifest illegality in
placing reliance on the deposition of other witnesses.
Per contra, Mr. S.P. Mishra, learned Senior Advocate assisted by Mr. L.K. Moharana, learned Advocate for the respondent, submitted that there is
no perversity in the finding of the courts below.
T.S. No.23/89 was filed by Gananath Jena and Kuturi Jena against Mani Jena and Jadi Jena in court of learned Munsif, Anandapur for a
declaration that plaintiff no.1 is the adopted son of defendants. Defendants were set exparte. On 8.11.89, exparte hearing was taken up. Plaintiffs
examined two witnesses, i.e., P.W.1-Kuturi Jena and P.W.2-Bidyadhar Jena. The suit was decreed on 25.11.89. Curiously in the appellate court, the
certified copy of deposition of Kailashnath was filed. The certified copy reveals that he was examined as P.W.1 on 1.8.95. Kailashnath was not a
witness in T.S. No.23/89. This Court fails to understand as to how he deposed as a witness on 1.8.95 when the suit was decreed on 8.11.89 ?
Learned appellate court brushed aside the same and proceeded to decide the appeal on the basis of the alleged deposition made by Kailashnath.
Instead of rejecting the application for additional evidence, it calculated the age of defendant no.1 and came to a finding that he was major at the time
of execution of Ext.5. This is apparently a mistake, which goes to the root of the matter. Â
In view of the discussions made in foregoing paragraph, the impugned judgment is quashed. The matter is remitted back to the learned appellate
court for de novo hearing. In order to avoid further delay, the parties shall appear before the learned appellate court on 20th June, 2018, on which date
learned appellate court shall fix a date of hearing and dispose of the appeal by end of September, 2018. Since the appeal is remitted back to the
learned appellate court, this Court refrains from answering the substantial questions of law.