Orissa High Court
Manjulata Satapathy vs Nimai Charan Mohanty on 29 July, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.244 of 2013
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.]
Manjulata Satapathy ........ Appellant
-Versus-
Nimai Charan Mohanty ....... Respondent
Advocate(s) appeared in this case:
For the Appellant : M/s. Mr. Bansidhar Baug,
Sr. Advocate along with
Mr. R.C. Rath, Advocate
For Respondent : M/s. Bibekananda Bhuyan,
Sr. Advocate along with
Ms. S. Sahoo, Advocate
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
29th July, 2025
SASHIKANTA MISHRA, J.
This is an appeal by the defendant No.1 against a
confirming judgment. The suit filed by the plaintiff for
Page 1 of 25
declaration of his right, title and interest over the suit
land along with ancillary reliefs being decreed and the
counter-claim raised by defendant No.1 being dismissed,
was confirmed in appeal.
2. For convenience, the parties are referred to as per
their respective status in the Trial Court.
3. The case of the plaintiff is that he purchased Ac.
0.06 decimals of land from Raja Krushna Chandra Deb of
Patia (defendant No.4) vide RSD dated 15.05.1979. He
also purchased land measuring Ac. 0.04 decimals from
defendant No.4 vide RSD dated 02.06.1979. He thus,
came over possession of the purchased land measuring Ac
0.100 decimals, which was a compact area and
constructed a stone boundary wall. He sold Ac. 0.050
decimals out of the said land to one Surajit Kumar Bihari
on 17.12.1999, who mutated the property in his name.
But subsequently, said Surajit sold away his aforesaid
purchased land to the plaintiff vide RSD No. 5036
executed on 21.07.2001 but registered on 22.09.2001 and
Page 2 of 25
delivered physical possession of the same, thus making
the plaintiff the owner of his purchased land of Ac. 0.100
decimals. Defendant Nos.1 and 2 initiated a proceeding
under Section 144 of Cr.P.C., for which the plaintiff
moved the Executive Magistrate for an order of restraint.
Though, such order was passed in his favour, the police
did not carry out the order and instead threatened the
plaintiff. The plaintiff then came to know that the
defendant no.1 claimed to have purchased Ac.0.80 decs of
land from defendant No.4 through a sale deed executed
through the power of attorney holder and mutated it in
her name. Further, defendant No.4 had executed the
power of attorney in favour of his wife and daughter with
respect to some land excluding the land sold to the
plaintiff. Defendant No.4 claimed to have acquired title
over the suit plot as per decree passed in T.S. No.58 of
1993. On such facts, the plaintiff, claimed that he having
purchased the land from its rightful owner in 1979, any
subsequent transfer, if at all, by defendant No.4 in favour
Page 3 of 25
of the defendant No.1 cannot convey any title. Hence, the
suit.
4. Defendant Nos. 1 and 2 contested the suit by
filing written statement mainly contending that the title of
defendant No.4 was established as per decree passed in
T.S. No.58 of 1993 when he was in physical possession of
the entire plot including the suit plot. As such, defendant
no. 4 along with his sons sold Ac. 0.200 decs in favour of
one Gopal Chandra Bidhar vide RSD dated 16.01.1993,
who, in turn, sold the same to Orissa Construction Co-
operative Techno-Engineering Cooperative Society Ltd.
(Defendant No.3) vide RSD dated 04.12.1993. Defendant
No.1 claimed to have obtained possession of the property
as per RSD dated 18.08.1993/18.12.1993 executed by the
Co-operative Society. Being the bonafide purchaser for
value and in possession she, apart from denying the title
of the plaintiff, also raised a counter-claim seeking
declaration of her title in respect of the suit land.
Page 4 of 25
5. The Trial Court framed issues for determination
out of which, issue No.3 relates to the title of the plaintiff
while issue No.7 relates to the title of defendant No.1.
Both issues were taken up together for consideration.
6. After analyzing the oral and documentary evidence
on record, the trial Court found that defendant No.4 had
validly transferred the suit land in favour of the plaintiff in
1979. Even though, his title was declared as per decree
passed in T.S. No.58 of 1993, yet referring to the provision
under Section 43 of the Transfer of Property Act, the trial
Court held that even if it is assumed that defendant No.4
had no title prior to the decree, the same would pass to
the transferee as he was a transferee in good faith for
consideration. The trial Court also held that the order
passed in the mutation case in favour of the plaintiff was
unassailable, having been passed as per the provisions of
law. As regards the claim of title of the defendant No.1,
the trial Court held that the suit land, which was
purchased by the plaintiff from defendant No.4 was again
Page 5 of 25
transferred to Gopal Chandra Bidhar, who claims to have
sold it to defendant No.1’s vendor Co-operative Society.
Since the land was sold to the plaintiff at the first instance
by defendant No.4, the latter had no title over the land to
alienate it again. Hence, the second transfer in favour of
Gopal Chandra Bidhar was not legal. On such findings,
the trial Court was of the view that the transfer made in
favour of defendant No.1 is not legal and title cannot pass
by virtue of such sale. As regards possession also, taking
note of the oral evidence adduced by the parties as also
the documentary evidence such as, rent receipts as well
as the report of the Amin-Commissioner, the trial Court
held that the plaintiff was in possession. In view of the
findings rendered in respect of the main issues, the
remaining issues were answered accordingly, and the suit
was decreed by declaring the right, title and interest of the
plaintiff and also directing delivery of possession of the
suit land along with permanent injunction. The claim of
the defendant No.1 was however, dismissed.
Page 6 of 25
7. The defendant no.1 carried the matter in appeal,
but said appeal was confined only to the decree passed in
favour of the plaintiff declaring his title with other reliefs.
The first appellate Court examined the evidence on record
including that of defendant No.1 and found no reason to
differ from the findings of the Trial Court. The appeal was
thus, dismissed confirming the decree by the Trial Court.
8. Being further aggrieved, defendant No.1 has
preferred the present appeal, which was admitted on the
following substantial questions of law:-
“(i) Whether the second appeal preferred by the
defendant No.1 is maintainable, he not having
challenged the dismissal of the counter-claim filed
by her before the first appellate Court.
(ii) Whether the findings of the Courts below in
respect of the identity of the land is perverse.”
9. Heard Mr. B. Baug, learned Senior counsel with
Mr. R.C. Rath, learned counsel for the defendant No.1-
appellant and Mr. B. Bhuyan, learned Senior counsel with
Ms. S. Sahoo, learned counsel for the plaintiff-respondent.
Page 7 of 25
10. In view of the preliminary objection raised by the
plaintiff-respondent with regard to maintainability of the
appeal which has led to framing of substantial question of
law No.1, it is felt proper to first refer to the contentions
raised by learned senior counsel appearing for the
plaintiff-respondent. In this context, Mr. Bhuyan would
argue that admittedly defendant No.1 had raised a
counter-claim seeking declaration of her title over the
same property. Said counter-claim was dismissed. She did
not prefer any appeal against dismissal of the counter-
claim. As such, she cannot be permitted to challenge the
finding of the trial Court relating to her counter-claim in
the present appeal as the same would be barred by res-
judicata.
Mr. Bhuyan further argues that defendant No.1
should have preferred two appeals, one against the decree
and the other, against dismissal of the counter-claim but
she chose to file only one appeal leaving the finding with
regard to the counter-claim unchallenged. Such finding
Page 8 of 25
must therefore, be held to have attained finality, which
cannot be reopened at this stage. To buttress his
contention as above, Mr. Bhuyan has relied upon the
following judgments:
(i) Sheodan Singh V. Smt. Daryao Kunwar, AIR 1966
SC 1332.
(ii) Premiere Tyres Limited V. Kerala State Road
Transport Corporation, AIR 1993 SC 1202.
(iii) Karunakar Panda V. Durgabati Bewa & Others,
AIR 1981 Ori 23.
(iv) Rama Deo V. State of Orissa & Others AIR 2019
Ori 53.
(v) Kishori Devi & Others V. Rameshwar Prasad AIR
2017 Pat 187.
11. Per contra, Mr. Baug, learned senior counsel
would argue that the question of res-judicata would arise
only when there are two suits, where the finding rendered
Page 9 of 25
in the former suit would stand as a bar for the
subsequent suit. Though, defendant No.1 had raised a
counter-claim, yet the trial Court passed one judgment
and one decree applying his judicial mind only once.
Therefore, the principle laid down under Section 11 of
CPC would not apply. Even, on the general principle of
res-judicata, Mr. Baug would argue that the first appellate
Court, despite noting that the defendant No.1 had not
filed any appeal challenging dismissal of her counter-
claim, did not give any finding that the said appeal was
barred by res-judicata. The plaintiff had also not raised
the issue. As such, the plea of res-judicata must be
deemed to have been waived by the first appellate Court.
In support of his contentions, Mr. Baug has relied upon
the following judgments of the Supreme Court:
(i) Narhari & Others V. Shanker & Others, AIR 1953
SC 419.
(ii) Ramagya Prasad Gupta & Others V. Murli Prasad
& Others, AIR 1974 SC 1320.
Page 10 of 25
(iii) Karunakar Panda V. Durgabati Bewa & Others,
AIR 1981 Orissa 23.
(iv) Pampara Philip V. Kooritholliyil Kinhi
Mohammaed, AIR 2007 Kerala 69.
(v) Managing Director, etc. V. K. Ramachandra Naidu
& Another, AIR 1995 SC 316.
12. Before adverting to the judgments cited at the bar,
it would be apposite to first refer to the factual position.
Admittedly, the plaintiff’s suit was decreed and the
counter-claim of defendant No.1 was dismissed. Further
admittedly, one judgment was passed followed by one
decree. The defendant No.1 preferred only one appeal
confining her challenge to the decree passed in favour of
the plaintiff. In the interlocutory paragraph of the
impugned judgment, the first appellate Court has
observed as under:-
“The counter-claim filed by defendant No.1 claiming
the relief of declaration of right, title, interest and
possession over the suit land in her favour has been
dismissed. It is pertinent to state here that as againstPage 11 of 25
the dismissal of the counter-claim, the defendant has
not filed any appeal separately. This appeal has been
preferred only challenging the decree granted by the
Court below in favour of the plaintiff.”
13. It was always open to the defendant No.1 to
challenge the dismissal of her counter-claim. Whether a
separate appeal should have been filed by her or the
dismissal of the counter-claim should have been also
questioned in the appeal preferred by her, are of academic
importance, presently. This is being said for the reason
that defendant No.1 consciously chose not to challenge
the dismissal of her counter-claim as observed by the first
appellate Court. Having done so, is it open to the
defendant No.1 to agitate the issue at this stage? The
answer can only be the negative as the finding of the trial
Court must be held to have attained finality and the stage
of challenging it has already passed long since. It would
also be pertinent to take note of the observations of the
First Appellate Court under paragraph-4 of the judgment,
the relevant portion of which is reproduced below:-
Page 12 of 25
“Practically, this decision has led to the Court
below to decree the suit and dismiss the counter-
claim, as there has been failure on the part of
defendant No.1 to also establish her alternative case
of acquisition of title by adverse possession.”
14. So, the First Appellate Court was fully conscious
of the fact that despite dismissal of the counter-claim of
the defendant No.1 for her inability to establish her
alternate case of acquisition of title by adverse possession,
no appeal had been preferred. In fact, the entire scrutiny
of the trial Court’s judgment by the first appellate Court is
confined only with regard to the correctness of the decree
passed in favour of the plaintiff.
15. In order to further satisfy itself, this Court has
perused the memorandum of appeal filed by the defendant
No.1 in the first appellate Court. As many as fourteen
grounds are put forth to challenge the impugned decree of
the Trial Court. None of the grounds except one i.e.,
ground No.14, specifically questions correctness of
dismissal of the counter-claim. Even so, the ultimate
prayer in the appeal was as follows:-
Page 13 of 25
“Hence, it is prayed that your honour may graciously
be pleased to admit this appeal, call for the lower
Court record and after hearing the advocate of the
appellant, be pleased to allow the appeal by setting
aside the impugned judgment and decree and for
which act of your honour’s kindness the appellant as
in duty bound shall ever pray.
[Emphasis added]
16. It is thus evident that there was no prayer at all
for allowing the counter-claim, which obviously led the
first appellate Court to make the afore-quoted
observation. Significantly, there was also no prayer by the
appellant-defendant No.1 to amend the memorandum of
appeal to incorporate challenge to the dismissal of the
counter-claim.
17. From the foregoing discussion therefore, this
Court is of the view that the Doctrine of Election resulting
in estoppel would be more applicable than the principle of
res-judicata at least insofar as the present second appeal
is concerned. To amplify, the defendant No.1 chose to
Page 14 of 25
confine her appeal only to the decree passed in favour of
the plaintiff and not against dismissal of the counter-
claim. This, obviously resulted in dismissal of the counter-
claim becoming final. The choice available at that stage to
the defendant No.1 was exercised in a particular manner
by her. As per Black’s Law Dictionary, Fifth Edition ‘the
doctrine of election is based on the rule of estoppel’ and
the principle that one cannot approbate and reprobate in
the same breath. The doctrine of election is one of the
species of estoppel in pais (i.e. equitable estoppel), which
is a rule in equity. By that rule, a person may be
precluded by his actions or conduct or silence when it is
his duty to speak, for asserting a right which he
otherwise, would have had. In the case of Commissioner-
cum-Income Tax V. Mr. P. Firm Maur, AIR 1965 SC
1216, it was held that the doctrine of approbate and
reprobate is only a species of estoppel, it applies only to
the conduct of parties. In the case of Maharashtra State
Road Transport Corporation V. Balwant Regular
Motor Service, Amravati, AIR 1969 SC 329 it was
Page 15 of 25
held that it is the settled proposition of law that once
order has been passed, it is complied with, accepted by
the other party and derived the benefit out of it, he cannot
challenge it on any ground.
18. Coming to the question of res-judicata, it has been
argued by Mr. Bhuyan that effect of non-filing an appeal
against a judgment or decree is that it becomes final
which can only be taken away in accordance with law. In
the case of Premiere Tax (supra), the Supreme Court
held as follows:-
“4. Although none of these decisions were concerned
with a situation where no appeal was filed against the
decision in connected suit but it appears that where an
appeal arising out of connected suit is dismissed on
merits the other cannot be heard, and has to be
dismissed. The question is what happens where no
appeal is filed, as in this case from the decree in
connected suit. Effect of non-filing of appeal against a
judgment or decree is that it becomes final. This
finality can be taken away only in accordance with
law. Same consequences follow when a judgment or
decree in a connected suit is not appealed from.”
19. Similarly, the finality that must be held to have
attained in respect of the dismissal of the counter-claim
Page 16 of 25
would preclude the defendant No.1 from challenging it at
this stage. This Court, in the case of Rama Deo (supra),
after referring to several previous judgments held that in
view of the fact that the plaintiff (in the said case) has not
appealed against the judgment and decree passed in the
counter-claim, the said judgment shall operate as res-
judicata. In the case of Kishori Devi (Supra), Patna High
Court held as follows:-
“15. After considering the above judicial
pronouncements and the principles laid down therein, there
is no escape from the conclusion that a counter-claim filed
in a suit has to be tried as a cross suit with all legal
implications and consequences and the order passed in
such a counter-claim has to be appealed separately in
accordance with law and procedure. In the present case,
admittedly no separate appeal was filed by the plaintiff-
respondent against the decree of the counter-claim of the
defendants which attained finality thereby and the said
fact was potent enough to attract the bar of res-judicata.
This Court therefore, holds that in the facts and
circumstances of the case the appeal filed by the plaintiff-
respondent in the Court below was barred by res-judicata
and the impugned judgment and decree passed by the
appellate Court, therefore, cannot be legally sustained. The
additional substantial questions of law are, therefore,
decided in favour of the appellants.”
20. In view of the above discussion, whether two
appeals should have been preferred or one single appeal
lay against the judgment of the trial Court is of no
Page 17 of 25
consequence. Assuming for the sake of argument that
only one appeal was maintainable, in view of the fact that
defendant No.1 chose not to question the correctness of
the dismissal of the counter-claim therein, he must be
held to have accepted/acquiesced to the said dismissal
resulting in its finality. The judgments cited by the
defendant-appellant are therefore, not necessary to be
gone into. The present appeal insofar as it seeks to
question the dismissal of the counter-claim by the trial
Court, is therefore, not maintainable. The substantial
question of law No.1 is answered accordingly.
21. Coming to the substantial question of law no.2, it
is the argument of Mr. Baug, learned senior counsel that
the plaintiff had purchased Ac. 0.100 decs from out of Ac.
7.240 decs. He mutated the same long after such
purchase, i.e., only after the decree passed in T.S. No.58
of 1993. The defendant No.1 on the other hand had
purchased Ac. 0.080 decs from out of the same plot as per
sketch map attached to her sale deed. The vendor’s
Page 18 of 25
vendor of defendant No.1 namely, Gopal Chandra Bidhar
was not impleaded as a party. Defendant No.1 purchased
land from defendant No.3 and came into possession since
the date of her purchase. Both the Courts below, ignoring
the evidence on record held that the defendant No.1 came
into possession in 1999. This is also contrary to the report
of the Survey Knowing Commissioner. Since the suit plot
measures Ac. 7.240 decs, plaintiff can take his purchased
land from defendant No.4 from the balance area.
According to Mr. Baug, these vital aspects were completely
ignored by the Courts below.
22. Mr. Bhuyan, on the other hand, would argue that
both the Courts below have concurrently found that the
plaintiff had validly purchased land from defendant No.4
way back in 1979. Assuming that defendant No.4 had no
valid title at that point of time, yet by virtue of the decree
passed in T.S. No.58 of 1993 he acquired valid title over
the suit land.
Page 19 of 25
23. Though, the land was earlier settled in favour of
defendant No.4 in two OEA cases followed by order of
confirmation and patta was also given in favour of
defendant No.4, the settlement record of the year 1988
wrongly recorded the land in the name of GA Department.
Under such circumstances, the title of defendant No.4
being declared by the Civil Court in T.S. No.58 of 1993,
the Courts below correctly applied the principle
underlying Section 43 of the TP Act and held that the title
of the plaintiff must be deemed to have been validated.
The defendant No.1 on the other hand, cannot lay any
valid claim in respect of the land already purchased by
the plaintiff.
24. Since both the Courts below have concurrently
found the plaintiff to have validly established his title, this
Court would ordinarily be slow to interfere with such
findings. But then, it has been contended that such
findings are perverse. As such, to satisfy itself as regards
correctness of the findings, this Court has also
Page 20 of 25
independently scanned the evidence on record. It is seen
that the plaintiff exhibited two sale deeds, one dated
15.05.1979 (Exhibit-2) and the other, dated 02.06.1979
(Exhibit-3) whereby, he purchased Ac 0.06 decs and Ac
0.04 decs respectively. It is not disputed that the lands as
above relate to Plot No.459. Sketch maps have been
annexed to both the sale deeds.
25. It is revealed that both the plots are adjacent to
each other. The fact that the plaintiff sold Ac 0.050 decs of
the said land to one Surajit Kumar Bihari is evidenced by
the sale deed marked Exhibit-13. It has been forcefully
argued that the land being recorded in the name of the
Government, defendant No.4 was not competent to
alienate it at the relevant time. However, it has been
brought on record by way of evidence (Exhibits.17 and 18)
that the title of defendant No.4 was declared by the
competent Court in judgment and decree passed in T.S.
No.18 of 1993 on 03.01.1996. It is otherwise borne on
record that even prior to passing of the decree, the land
Page 21 of 25
was settled originally in favour of the defendant No.4 in
O.E. Case Nos.734 and 735 of 70/71 followed by order of
confirmation passed by the Land Reforms Commissioner
on 21.01.1978 in RT Case No.3344/75. The land was
mutated in favour of the defendant No.4 and ROR was
issued on 11.06.1979. However, in the settlement record
of the year 1988, the land was again recorded in the name
of the State which led defendant No.4 to file the civil suit
whereby, his title was again declared. The First Appellate
Court has applied the principle underlying Section 43 of
the TP Act, which is reproduced below:-
“Where a person [fraudulently or] erroneously
represents that he is authorized to transfer certain
immovable property and professes to transfer such
property for consideration, such transfer shall at the option
of the transferee, operate on any interest which the
transferor may acquire in such property at any time during
which the contract of transfer subsists.
Nothing in this section shall impair the right of
transferee in good faith for consideration without notice of
the existence of the said option.”
26. Thus, even if it is held that the title of defendant
No.4 was declared only on 03.01.1996 then also, the same
would enure to the benefit of the purchaser of such land
Page 22 of 25
prior to validation of his title as per the principle
governing Section 43. In other words, the plaintiff, being a
prior purchaser would automatically have his title
validated by such process. Under such circumstances,
this Court is of the view that both the Courts below rightly
held that the ROR of the year 1988 was wrongly published
in the name of the State.
27. Insofar as the claim of defendant No.1 is
concerned, the first appellate Court found that the
vendor’s vendor had no land recorded in his favour.
Referring to the sale deeds and the sketch map attached
thereto (Exhibits-13 and 14) and the sale deed marked
Exhibit-E, the First Appellate Court rightly concluded that
the suit land was earlier purchased by the plaintiff from
defendant No.4, which was subsequently transferred to
Gopal Chandra Bidhar and that the plaintiff being the
earlier purchaser must be held to have title over it. As
regards possession, the first appellate Court did consider
the fact that the report of the Amin-Commissioner
Page 23 of 25
indicated possession of defendant No.1 but took note of
the fact that the possession ought to be relatable to 1979
when the plaintiff acquired title.
28. This Court is unable to accept the argument that
when no party has title possession ought to be respected
as, such a principle, in the peculiar facts and
circumstances of the case, would have no application. So
even if it is held that defendant No.1 began possessing the
suit land in 1999, the same would have no bearing as
regards his claim over the property.
29. Thus, this Court finds that both the Courts below
have arrived at findings regarding title and possession of
the parties entirely on the basis of evidence on record and
there is no perversity therein so as to warrant interference
by this Court. The substantial question of law No.2 is
answered accordingly.
Page 24 of 25
30. For the foregoing reasons therefore, the appeal
fails and is therefore, dismissed. There shall be no order
as to costs.
……………………….
Sashikanta Mishra
Judge
Orissa High Court, Cuttack.
The 29th July, 2025/P. Ghadai, Jr. Steno
Signature Not Verified
Digitally Signed
Signed by: PUSPANJALI GHADAI
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 30-Jul-2025 13:43:05
Page 25 of 25