RAJENDRA BISWAL Vs. BHAGABAN JENA

JUDGEMENT

(1.) The appellants in this appeal calls in question the judgment and decree passed by the lower appellate court in S.J.A. No. 09/37 of 1993/1989 confirming the judgment and decree passed in O.S. No. 62 of 1978. By the said judgments and decrees, the courts below dismissed the suit of the plaintiffs for declaration that the allotment of share in the homestead plot assigned with no. 815 to 818 (four in number) in the final decree passed in O.S. No. 40 of 1962 to be not in accordance with the preliminary decree as also based on the report of the Commissioner which suffers from non-consideration of factum of possession of the properties as ordained in the said preliminary decree and as such being unsustainable in the eye of law, are liable to be set aside.

(2.) The above noted second appeal has been admitted formulating the substantial questions of law as raised under ground No. 5, 7 and 8 which are as under:- "5) Whether the learned courts below have failed to consider the sale deed (Ext. 8) executed by one Josoda in favour of Sugandha in respect of suit lands and when the specific allegation of Sugandha was that one Bhagabat Mohanty husband of Punti and after him Kartika Jena father of defendants no. 1 to 5 were looking after her case and fraud has been played by Kartika, the findings of the courts below that since Sugandha did not claim the same she can be said to have abandoned her relief and is not entitled to get said properties clearly shows the non-application of judicial mind by both the courts below and as such the findings are bad in law and are liable to be set aside? 7) Whether the learned trial court has gone wrong in not considering the matter as per the direction given by the appellate court while remanding the matter for fresh adjudication regarding the possession of the parties at the time of final decree proceeding in as much as the findings of the learned Trial Court is unsustainable in the eye of law. And basing on such erroneous finding of the trial court, the finding assured at by the learned appellate court is equally unsustainable in law and liable to be se aside? 8) Whether the learned courts below are and in fact and law is not considering the factum of possession of plaintiff in respect of the properties covered under Ext. 2 i.e. a sale deed dated 18.05.1940 executed by one Shri Shrihari Jena in favour of Sugandha which should have been allotted to her in the earlier final decree proceeding?"

(3.) In course of hearing of the appeal, one factual aspect surfaced for ascertainment that as to whether the final decree passed in O.S. No. 40 of 1962 has in the meantime been executed by any of the parties or not and if so its result. Learned counsel for both sides after taking time for obtaining necessary instruction as regards that matter have finally come up with the answer that said final decree has not further been executed at the instance of any of the party/parties for delivery of possession with respect to their respective allotted properties. In view of above, immediately the question arises that if the final decree which is the subject matter of the subsequent litigation ultimately now being questioned in the second appeal if is no more enforceable then what purpose in reality would it serve by going to adjudicate the sustainability of the judgment and decree passed by the courts below in the suit where the principal relief is to set aside that final decree although in part for the homestead lands.