ADIKANDA MISHRA Vs. UMA DEVI

JUDGEMENT

(1.) This application has been filed for reviewing the judgment dated 4th August 1993, in Second Appeal No. 199 of 1983.

(2.) The predecessor-in-interest of the present applicants had filed Title Suit No. 39/ 72 in the Court of the Munsif, Kendrapara, for declaration of title, confirmation of possession and injunction, which was decreed by the trial Court on 1.1.1977. The defendants filed Title Appeal No. 37/77. In the said appeal, it was contended that the disputed land having vested in the State Government, the plaintiff had no further right to get his title declared and as such the suit should have been dismissed. However, the lower appellate Court refused to entertain such a contention on the ground that such a question was not available to be raised for the first time in appeal. Accordingly, the appeal was dismissed. In the Second Appeal, the defendants-appellants did not assail the concurrent findings of the Courts below to the effect that the disputed land appertained to plot Nos. 106, 107 and 113 as well as the finding regarding adverse possession. The only contention raised by the appellants was relating to the right" of the plaintiff after the estate vested in the State Government. Such contention was accepted by this Court and the Second Appeal was allowed and the suit was dismissed.

(3.) In this review application, the learned counsel for the petitioner, has contended that as a matter of fact, the disputed land had been settled with the plaintiff and since such a question has not been raised before the trial Court, necessary evidence could not be adduced By the plaintiff. The learned counsel appearing for the opposite parties in this review application submits that the present petitioners could have raised such a plea at the time of hearing of the second appeal. Though there may be some justification in such criticism, I find that the vesting itself had taken place prior to the suit and as such the defendants also were obliged to raise such a plea before the trial Court. The ultimate aim of a Court of law is to render substantial justice and not to punish parties for their mistakes. I therefore, consider that there is sufficient reason to allow the review and to remit the matter to the trial Court for finding out if the disputed property has been settled with the plaintiff. Since the other concurrent findings rendered by the Courts below had not been assailed in the second appeal, the trial Court is now required to consider whether the disputed land has been settled with the plaintiff, under the provisions of the Orissa Estates Abolition Act or Lease Principles or any other relevant executive instruction. If it is found that the disputed land had been settled with the plaintiff, the decree passed by the trial Court as well as the appellate Court shall be confirmed. If, however, it is found that the disputed land has not been settled with the plaintiff, the suit shall be dismissed.