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Harekrushna Misra and ors. Vs. Ananta Thakur Through Managing Trustee Muralidhar Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberM.A. No. 19 of 1969
Judge
Reported inAIR1973Ori90
ActsOrissa Estates Abolition Act, 1952 - Sections 13D(1), 13D(2), 13G and 13G(3)
AppellantHarekrushna Misra and ors.
RespondentAnanta Thakur Through Managing Trustee Muralidhar Das
Appellant AdvocateM. Mohanty, Adv.
Respondent AdvocateP.K. Dhal, Adv.
DispositionAppeal dismissed
Cases Referred(D. Pullayya v. A. Nagabhushanam
Excerpt:
.....that as a rule, it is only a party to the proceeding in the primary court or tribunal who has the right to prefer an appeal against the order of that tribunal provided of course he is aggrieved by it and if any other person happens to feel aggrieved by that order, and his interests are affected thereby, he can file an appeal against it only by leave of the court of appeal but not otherwise. 10. apart from it the criterion laid down in the full bench decision of the andhra pradesh high court reported in air 1962 andh pra 140 (fb) is not satisfied to justify grant of leave in this case. the effect of the notification under section 3-a was to abolish the intermediary interest and such a notification does not affect the tenancy right, if any which is clearly protected under section 8 (1) of..........appellants who admittedly were not parties to the proceeding before the tribunal. a statutory right of appeal has been provided against orders of the tribunal under sub-section (3) of section 13-g of the act which runs as follows:--'13-g (3). every order made by the tribunal disposing of the claim and references shall subject to the decision in an appeal, if any. filed before the high court by any party aggrieved, within thirty days from the date of the order, for the purpose of this act, be filed.'it is urged by him that this statutory right of appeal has been conferred only on any party aggrieved and as the appellants were not in the array of parties before the tribunal they are not entitled to maintain this appeal under sub-section (3). learned counsel for appellants, on the.....
Judgment:

A. Misra, J.

1. This is an appeal under Section 13-G (3) of the Orissa Estates Abolition Act (hereinafter to be referred to as the Act).

2. The facts, in brief, giving rise to this appeal are as follows:

A Notification was issued under Section 3 of the Act on 29-4-1963 abolishing the intermediary interest in 14.80 acres of land in khata No. 1. Part II 448 debottar lakhrai bahal situate in mouza Nuasasan. Kendrapara. The Tribunal constituted under Section 13-C of the Act on receipt of a reference from the Collector under Section 13-D (2) of the Act registered the same on 4-10-1967 as suit No. 944-MG Eef. of 1964 between Ananta Thakur represented by trustee Krushna Chandra Das and the Collector and passed an order fixing the case to 28-10-1967 for removal of some defects. As the defects were not removed, on 28-10-1967, an order was passed dismissing the case for default. On 2-1-1969, a petition was filed by Sri Muralidhar Das as trustee of the deity for restoration of the case which had been dismissed for default. This application was registered as Misc Case No. 14 of 1969 and posted to 9-1-1969 for hearing on the point of limitation. On 9-1-1969. an order was recorded that the petition was maintainable and the original case was restored to file. It was posted to 16-1-1969 and thereafter to 18-1-1969. On this latter date, the trustee of the deity was examined and an order was passed declaring that the estate in question is a trust estate and as such not liable to vest in Government. The present appeal has been preferred against this order by the appellants who were not parties to the proceeding before the Estates Abolition Tribunal. The appellants allege that they have acquired tenancy rights under a permanent registered patta dated 12-12-1949 from one Hari Charan Das. the mortgagee of the disputed lands from Krushna Chandra Das, the then trustee of the deity, who had obtained title to and possession of the mortgaged properties by purchase in a court sale in execution of a mortgage decree on the basis that the lands were nominal debottar, the deity being a private deity of the mortgagor's family.

3-4. The appellants have challenged the legality of the impugned order on the following grounds :

(1) The order passed In Misc. Case No. 14 of 1969 restoring the original case which had been dismissed for default was without jurisdiction as there is no provision for restoration under Sections 13-A to 13-K of the Act

(2) in any view of the matter, the petition for restoration filed more than 1 year and 2 months after the date of dismissal for default was clearly barred by limitation;

(3) the original case having been registered on a reference by the Collector under Section 13-D (2) of the Act, the Tribunal had no jurisdiction to restore the same on the application of a trustee who had not taken any steps within the period prescribed under Section 13-D (1) and

(4) the impugned order dated 18-1-1969 declaring the property to be a trust estate was passed without Complying with the provisions of Section 13-G of the Act, and as such, it was without jurisdiction.

5. Regarding the merits of the grounds on which the validity and correctness of the impugned order is challenged. Mr. Dhal, learned Counsel appearing for respondent conceded that Order 9, Civil P. C. was not applicable, and therefore the order passed by the Tribunal restoring the case which had been dismissed for default was illegal. Apart from it. the order passed by the Tribunal on 9-1-1969 restoring the reference which had been dismissed for default as well as the order passed on 18-1-1969 declaring the property as a trust estate are not in accordance with the provisions contained in Sections 13-D to 13-G of the Act Section 13-D (1) provides for the trustee in respect of a trust estate making an application in the prescribed form and manner to the Tribunal within three months from the date of notification under Section 3-A claiming the estate to be a trust estate. Section 13-D (2) provides for the Collector of the District on his own information or on receipt of information from the Endowment Commissioner making a reference within the same period to the Tribunal for determination whether an estate is a trust estate or not In the present case, admittedly, no application was filed by the trustee under Section 13 (d) (1). The original case was registered on a reference by the Collector under Section 13-D (2) and that was dismissed for default When the trustee had not made any application under Sub-Section (1) of Section 13-D. he had no locus standi to apply for restoration of a reference made by the Collector under Section 13-D (2). Therefore, on this ground, the order of restoration on an application filed by the trustee long after the prescribed period is prima facie invalid. Further, there is another lacuna in the disposal of the reference. Section 13-G requires the Tribunal to publish the particulars of all claims and references which are received under the different sub-sections of Section 13-D inviting objections thereto from persons interested within a specified period. Only after receipt of the objections if any, the Tribunal is to record such evidence as the parties may adduce and after giving them an opportunity of being heard dispose of the claim or reference, as the case may be. In this case, as the lower court record shows, the requirements of Section 13-G have not been followed, and therefore, recording of evidence of the trustee and disposal of the reference are contrary to the provision contained In Section 13-G, and as such, the order is not valid. Thus, on merits the grounds alleged by the appellants are substantial and it is not seriously disputed by learned Counsel for respondent that the impugned order is not legal and valid.

6. Learned Counsel for respondent, however, has raised a preliminary obiection about the maintainability of the appeal by the present appellants who admittedly were not parties to the proceeding before the Tribunal. A statutory right of appeal has been provided against orders of the Tribunal under Sub-section (3) of Section 13-G of the Act which runs as follows:--

'13-G (3). Every order made by the Tribunal disposing of the claim and references shall subject to the decision in an appeal, if any. filed before the High Court by any party aggrieved, within thirty days from the date of the order, for the purpose of this Act, be filed.'

It is urged by him that this statutory right of appeal has been conferred only on any party aggrieved and as the appellants were not in the array of parties before the Tribunal they are not entitled to maintain this appeal under Sub-Section (3). Learned Counsel for appellants, on the other hand, contends that the words 'any party' occurring in Sub-Section (3) cannot be limited to persons who actually were arrayed before the Tribunal as parties, but will include any person who is aggrieved by the order of the Tribunal- Alternatively, it is contended by him that in certain circumstances an appeal can also be filed by persons who are not parties in the Court below, but are adversely affected by this order. In the present case, according to him, the appellants had acquired tenancy rights from the purchaser in execution of a mortgage decree against a previous trustee who claimed the property to be nominal debottar the deity being their family deity. Therefore, they have been adversely affected by the order declaring the property to be a trust estate as they are deprived of having their tenancy right under the State Government in accordance with the provision of Section 8 (1) of the Act. These contentions require careful examination.

7. Sub-Section (3) of Section 13-G confers a right on any party aggrieved to prefer an appeal against the decision of the Tribunal. The question is whether theappellants who were not among the array of parties before the Tribunal can come within the ambit of the words 'any party aggrieved.' The use of the words 'any party aggrieved' instead of 'any person aggrieved' prima facie indicates that it refers to those persons only who are ranged on their side before the Tribunal as otherwise, the word 'person' instead of the word 'party' would have been used while conferring the right of appeal. Even assuming that the word 'party' used in Sub-Section (3) is to be construed as including 'any person' on a liberal construction, the question is whether a person who was not in the array of parties in the court below will be entitled under general principles of law to prefer an appeal as of right. The trend of judicial opinion is that the English practice in this respect has been adopted in this country also. The English practice as given in Halsbury's Laws of England, 3rd Edition. Vol. 30 at p. 461 is as follows :

'Any of the parties to an action or matter and any person served with notice of the judgment or order may appeal (by leave where leave is necessary). A person who is not a party and who has not been served with such notice, cannot appeal without leave, but a person who might properly have beena party may obtain leave to appeal.'

8. I will now proceed to deal with the decisions sought to be relied upon by learned Counsel for appellants. In the decision reported in AIR 1949 Bom 141. (Province of Bombay v. W. I. Automobile Association) a dispute arose between the Western Indian Automobile Association and its workers. Government of Bombay constituted a Tribunal to whom the dispute was referred for adjudication. The Association challenged the jurisdiction of the Tribunal and filed a writ application in the Bombay High Court A learned single Judge before whom the writ application came issued a writ of prohibition against the Tribunal restraining it from entering upon the enquiry. The State of Bombay as well as the Automobile Association preferred appeals against the said decision. The question arose as to the competence of the State of Bombay to file the appeal, it not having been a party to the proceeding before the Tribunal. In that case, although the State of Bombay was not impleaded as a Party in the writ proceeding, a notice had been served on the Province of Bombay under the direction of the learned Judge and the State of Bombay in pursuance to that notice had appeared and submitted its point of view before the Court. In those circumstances, it was held.

'The Civil Procedure Code, does not In terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England, the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suit he has a right of appeal, In the case of a person not a party to the suit who is affected by the order he has' no right, but the Court of Appeal may in its discretion allow him to prefer an appeal.' (The underlining is mine)

This decision was followed by the Madras High Court in the case reported in AIR 1953 Mad 485, (P. Ammal v. State of Madras). In that case, the Court was concerned with a preliminary objection that an appeal was not competent and the appellate court had no power to grant leave to appeal against the judgment of one of the Judges of the High Court, who directed in an application under Article 226 of the Constitution handing over of an estate by the Court of Wards to the senior- widow of the late Zamindar.' Neither the State of Madras nor the Court of Wards who were parties to the proceeding took the matter in appeal. Another widow of late Zamindar filed an application for leave to appeal. While dealing with the objection that the Court bad no power to grant such leave, it was observed that the provisions of the Civil Procedure Code did not prohibit the granting of leave and that it was in accord with the procedure obtaining in England, The Rajasthan High Court in the decision reported in AIR 1958 Rai 181. (Heer-singh v. Veerka) after referring to various decided cases on the point summarised the position of law as follows :

'The position appears to us to be clearly this that as a rule, it is only a party to the proceeding in the primary court or tribunal who has the right to prefer an appeal against the order of that tribunal provided of course he is aggrieved by it and if any other person happens to feel aggrieved by that order, and his interests are affected thereby, he can file an appeal against it only by leave of the Court of appeal but not otherwise. Again, whether such leave should be granted or not is a matter which lies in the discretion of the Court of Appeal. We would also add that no hard and fast rule can be laid down to crystallise the exercise of such discretion, andthe decision in each case is bound to depend upon its own facts and circumstances.'

A Full Bench of the Andhra Pradesh High Court also dealt with a similar question in the decision reported in AIR 1962 Andh Pra 140 (FB), (D. Pullayya v. A. Nagabhushanam), and while expressing its agreement with the principles laid down in the aforesaid decisions of Bombay. Madras and Rajasthan High Courts, observed :

'It is not in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nomine parties would be bound by the decree or judgment in the proceeding and who could not by reason the Explanation VI to Section 11, Civil P. C. agitate the same question in separate.........representative capacity, hewould not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not, choose to carry the matter in appeal against that decree or order.'

The principles deducible from these decisions are firstly, as a rule, only a party to the proceeding in the primary court or tribunal has the right to prefer an appeal; secondly if any other person who was not a party feels aggrieved by the order and his interests are affected thereby, he can prefer an appeal only with the leave of the Court of appeal; thirdly it is in the discretion of the Court of appeal to grant such leave in the circumstances of each case and lastly, leave is to be granted to persons who are not parties, if they would be bound by the decree, order or judgment in the proceeding and who could not by reason of Explanation VI to Section 11, Civil P. C. agitate the same question in separate representative capacity.

9. Bearing these principles in mind, it Is now to be seen whether the present appeal by the appellants who admittedly were not parties in the primary court is maintainable. When the appellants have not obtained leave of the Court for preferring this appeal on the ground that they are adversely affected by the order, in view of the principles laid lown above, this appeal is prima facie not maintainable. In the case reported in AIR 1949 Bom 141 the appeal had been preferred without obtaining leave of the Court. While observing that the Province of Bombay had not obtained any leave and had filed the appeal as if in exercise of a right to do so, a position not tenable, their Lordships purported to grant leave in the circumstances of the case, particularly taking note of the fact that the single Judge against whose decision the appeal had been preferred had given notice to the State of Bombay who had appeared before him and made submissions, though they were not formally impleaded as parties. In the present case, no such circumstance exists and therefore, the question of granting leave to prefer an appeal at this stage cannot arise.

10. Apart from it the criterion laid down in the Full Bench decision of the Andhra Pradesh High Court reported in AIR 1962 Andh Pra 140 (FB) is not satisfied to justify grant of leave in this case. All that the appellants claim is a tenancy right under the intermediary interest for abolition of which a notification was issued under Section 3-A of the Act, but on account of the order passed under Section 13-G declaring it to be a trust estate, vesting did not take place. The effect of the notification under Section 3-A was to abolish the intermediary interest and such a notification does not affect the tenancy right, if any which is clearly protected under Section 8 (1) of the Act. As a result of the impugned order, the vesting of the intermediary right in the State was prevented. The appellants do not claim to be interested in any manner in the intermediary interest which was affected by issue of the notification under Section 3-A. If they have any tenancy right, the same being protected by virtue of the provision under Section 8 (1), it cannot be said that the impugned order has adversely affected their interest or in any manner they will be bound by virtue of the Explanation VI to Section 11 Civil P. C. so far the right which they claim. Therefore, on the ground that leave to prefer an appeal has not been obtained, and even otherwise the order does not adversely affect the tenancy right which appellants purport to claim, the appeal by the present appellants is not maintainable.

11. In the result, the appeal fails and is accordingly dismissed with costs.


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