DEBADUTTA MISHRA Vs. CHAKRADHAR MISHRA

JUDGEMENT

(1.) Petitioners in W.P.(C) No. 15455 of 2009 being sons of one Jugal Kishore Mishra by filing the petition assailed the order and decree in Annexure-1 series passed by the Judge, Permanent and Continuous Lok Adalat, Keonjhar in PLA Case No. 50 of 2008 whereas the second writ (W.P.(C) No. 16858 of 2009) is filed by one Jugal Kishore Mishra (the father of petitioners in the 1st case and nephew of opposite party No. 2 in the 2nd case) assailing the very same award involved in PLA Case No. 50 of 2008.

(2.) The case of the petitioners in the 1st case is that opposite party No. 1, the uncle of their father, filed PLA No. 50 of 2008 before the Judge, Permanent and Continuous Lok Adalat, Keonjhar seeking declaration that he is the absolute and sole owner as well as the title holder of the schedule properties against the father of the present petitioners appearing as opposite party No. 2 in the present writ. The claim made in PLA No. 50 of 2008 is solely based on an earlier decree passed in Title Suit No. 16 of 1978, which has been ended on the basis of a compromise arrived between the parties therein. The petitioners further submitted that their grand father, namely, Nirakar Mishra and applicant in the PLA Chakradhar Mishra are sons of one Bhagabat Mishra, who died in the year 1945 leaving behind his widow, namely, Mania Mishra and two sons, namely Nirakar Mishra, the grand father of the petitioners and Chakradhra Mishra present opposite party No. 1, Wife of Nirakar Mishra predeceased him and father of the petitioners became the sole heir of said Nirakar Mishra. The claim of the present opposite party No. 1 in the PLA application solely based on a compromise entered into between Chakradhar Mishra and Jugal Kishore Mishra both the opposite parties in the present writ petition. It is apt to mention here that the claim in the PLA application was confined to the schedule of properties vide Lot No. 1, Lot No. 2 and Lot No. 3. Petitioners further alleged that the property being ancestral property and even though they are majors and they have right over the property, the PLA application was cladestinely levied without making the present petitioners as party and a clandestine decree has been obtained from the Permanent and Continuous Lok Adalat, Keonjhar. The petitioners further alleged that the compromise petition vide Annexure-2 is void and invalid on the ground that no compromise has been arrived with unconditional acceptance of the right, title and interest of opposite party No. 1 over the disputed property at the instance of Jugal Kishore Mishra, the father of the petitioners, who was duty bound to protect the property of the present petitioners. In assailing the impugned order, the petitioners have alleged that the compromise has been arrived by applying fraud, misrepresentation and by undue influence for which such a decree is not maintainable in the eye of law. Learned counsel for the petitioner also assailed the impugned order on the ground that there has been non-compliance of several provisions of the Legal Services Authorities Act, 1987.

(3.) Per contra, the opposite party No. 1 on his appearance filed a counter affidavit inter alia contending therein that PLA No. 50 of 2008 was considered in active participation of the father of the present petitioners. There was previous decree involving the disputed property and to avoid future complication, there arose occasion for filing a compromise application. The compromise application was filed on joint affidavit, the order and decree in the PLA No. 50 of 2008 are passed on the consent of the opposite parties and the father of the petitioners and as such, the present petitioners are not prejudiced in any manner. The opposite party No. 1 i.e. Chakradhar Mishra provided a genealogy to substantiate his case which runs as follows : The opposite party No. 1 further submitted that prior to the PLA case, a suit as filed by the opposite party No. 1 along with Mania, his mother, registered as Title Suit No. 16 of 1978 in the Court of Sub-Judge, Keonjhar against late Nirakar Mishra, father of opposite party No. 2 and grand father of the present petitioners. The suit ended in compromise on 10.7.1978. Record of rights was prepared jointly. The decree was not engrossed on stamp paper but a complete partition was effected following the terms of the decree in the above suit by metes and bounds. By virtue of the aforesaid decree of partition by metes and bound, Nirakar, the grand father of the petitioners possessed his land separately. On his filing a Mutation Case for recording his name in respect of the land allotted to him, following the terms of the decree, his name was separately recorded assigning the allotted land in his favour, Chakradhar Mishra, the present opposite party No. 1, however, could not record his name exclusively although he was in separate possession. The properties involved in PLA No. 50 of 2008 are his exclusive properties. PLA Case No. 50 of 2008 was filed only to avoid future complicacy. On these premises, the opposite party No. 1 claimed that there is no illegality in the impugned order. To substantiate his case, opposite party No. 1 further pleaded that the parties have entered in several civil proceedings vide Title Suit Nos. 20 of 1982 and 15 of 1988 and 118 of 2009 prior to settlement before the Permanent and Continuous Lok Adalat and during pendency of the writ petition the petitioners along with opposite party No. 1 have already filed Civil Suit No. 72 of 2012 making a fresh prayer for partition of the properties which is pending adjudication. The opposite party No. 1 also claimed dismissal of the present writ petition in view of initiation of Civil Suit No. 72 of 2012. Opposite party No. 1 in filing the counter affidavit has filed the copy of the plaint in Title Suit No. 16 of 1978 as appearing at Annexure-A to his counter affidavit. He has also filed a copy of the plaint vide Civil Suit No. 72 of 2012 at Annexure-B to his counter affidavit.