Citation-5

CIVIL PROCEDURE CODE

6.     Order XL, Rule 1 CPC-By order of appointment of a Receiver, a party in possession of disputed property under a legal claim should not be ousted.

         2004(I)-OLR-48 (Ramasankar Misra Vs. The State of Odisha and two others).

7.     Order VII, Rule 3 CPC- Identity of suit land –sufficient description.

         AIR (37)-1950-Patna-305 (Chutahru Bhagat & Others Vs. Hialal Sah & Others).

         53 (1982)-CLT-78 (Rama Subudhi Vs. Bhagirathi @ Udayanath Baitharu).

         74 (1992)-CLT-463 (Lucy Naroma Vs. Sri Raghunath jew Bije Chhauni Math, represented   through Mohant Ajodhyanath Das).

8.     Proper identity of suit land.

         AIR-1983-SC-409 (Apoorva Shantilal Shah Vs. Commissioner of Income Tax, Gujrat, Ahmedabad).

         AIR-1982-SC-760 (Kalloomal Tapeswari Prasad Vs. Commissioner of Income Tax, Kanpur).

9.     Description of property in terms of Ordeer VII, Rule 3 CPC- Court has to pass an enforceable decree.

         74 (1992)-CLT-463 (Lucy Naroma Vs. Sri Raghunath jew Bije Chhauni Math, represented   through Mohant Ajodhyanath Das).

10.   Res judicata.

         101 (2006)-CLT-29- (SC) (Ishwar Dutta Vs. Land Acquisition Collector & another).

11.   Commissioner’s report- Weightage.

         AIR-1940-PC-3 (Chandan Mull Indra Kumar & others Vs. Chiman Lal Girdhar Das Parekh & another).

12.   Order XXXIX, Rule 3 CPC- Scope of Appeal.

         AIR-2000-SC-3032 (A. Venkatasubbiah Naidu Vs. S. Challapan & others).

13.   Leave to Appeal in a representative suit U/s 5 of the Limitation Act- If a person is deemed to be a party under Order 1, Rule 8 CPC and for purposes of S.11, Explanation VI CPC, leave to Appeal can be granted in appropriate cases.

         AIR-1962-AP-140 (Dimmiti Pullayya & others Vs. Abdebolu Nagabhushanam & Others).

14.   Status quo order in an Injunction Case without specifying who is in possession and what is the status results in evasive order with far reaching consequences.

         AIR-1989-Madras-73 (D.Albert Vs. Lalitha and others).

15.   A finding may operate as res judicata if an issue is raised in the earlier proceeding of competent jurisdiction and decided by that Court.

         AIR-2000-SC-2301 ( Madhvi Amma Bhawani Amma and Others Vs. Kunjikutty Pillai Meenakshi Pillai & others).

16.   Distinction between compromise decree and contested decree- In passing the decree by consent, the Court adds is mandate to the consent. A consent decree is composed of both a command and a contract.

         AIR-2006-SC-1883 (Rama Narang Vs. Ramesh Narang & another).

17.   Order VIII, Rule 5 CPC- When pleading made in the plaint not specifically  denied or affirmed in the written statement, the doctrine of non-traverse can very well be applied.

         Vol.XLVI (1978)-CLT-347 (Nimai Maharana & another Vs. Basudev Mahana & others).

18.   Court is not to hold mini trial at the stage of grant of temporary injunction.

         2001-SC-69 (Anand Prasad Agarwal Vs. Tarkeshwar Prasad & others).

19.   When a suit is not pending, no order of injunction can be passed even with the aid of Sec. 151 CPC.

         1994(5)-SCC-380 ( Kavita Trehan (Mrs.) & others Vs. Balsara Hygiene Products Ltd.

         2008 (Supp.-I)-OLR-988 (Sadananda Sethi Vs. Benudhar Sethi).

         2003 (Supp.)-OLR-414 (Kulamani Behera Vs. Suka Jena).

20.   Theory of non-traverse.

         Vol. XLVI (1978)-CLT-347 (Nimain Maharana & another Vs. Basudev Maharana & others).

21.   Theory of non-traverse gives a goodbye in respect of Govt. Land. Court is to be vigilant before passing decree against the State Government and should not interpret law to usurp public property by land grabbers and encroachers.  

         2010(2)-SCC (Civ)-343 (Hanumaiah & another Vs. State of Karnataka).

22.   When law is changed, earlier decision will not operate as res judicata.

         AIR-1995-AP-17 (3 ACES, Hyderabad Vs. Municipal Corporation of Hyderabad).

CONSOLIDATION

23.   Civil Court is not the appellate authority of the consolidation forum. Persons aggrieved has to move in that Consolidation forum.

         2007 (Supp.-10-OLR-276 (Balaram Bhoi Vs. Babajee Bhoi and others).

24.   Once there is declaration of right and interest by the consolidation Authority, Civil Court would have no jurisdiction to decide the question of title afresh as it would operate as res judicata.

         57 (1984)-CLT-398 (Hrudananda Panda & another Vs. Bhirendra Behura @ Behera).

         74(1992)-CLT-741 (Biranchi Sahu Vs. Jujesthi Sahu & others).

25.   Right, title and interest cannot be decided by Civil Court in respect of those lands which are covered under consolidation operation.

         AIR-2003-Orissa-157 (Kusasan Samal and others Vs. Indramani Pradhan (dead) after him Panchei Bewa and others).

26.   Two or more candidates contesting- No question of declaring the petitioner as elected- only a casual tenancy to be notified.

         2006(Supp.-I)-OLR-272 (Brundaban Mohanty Vs. Dushasana Jena & seven others).

27.   Recounting of ballot papers by Court.

         88(1999)-CLT-136 (Ramchandra Khuntia Vs. Ashok Kumar Das & others).

         AIR-1993-Orissa-233 (Nakka Bhikhyamanu Vs Sri Aurovindo Dhali & others).

EVIDENCE ACT.

28.   Entries in Birth & Death Register are public documents and are admissible.

         2006 (Sup.-I)-OLR-746 (Sanjukta Behera Vs. Rangalati Dalai and others).

         2008(I)-CJD (HC)-1 (Siba Prasad Jena Vs. Puspanjali Jena and others).

29.   Wrong concessions made by a Counsel cannot bind a party.

         AIR-2004-SC-1704 (Union of India & others vs. Mohanlal Likumal Punjabi & others).

30.   Date of Birth issued by Board of Secondary Education is more authentic than affidavit filed by a party.

         2004( Supp)-OLR-895 (Harekrishna Das Vs. Chairman Paradeep Port Trust & others).

31.   Thirty years document- Presumptive value.

         1988(II)-OLR-351 (Promoda Kumar Sahu & others vs. Baidhynath Mishra & others).

32.   A Registered sale deed carries a presumption & genuineness of the transaction.

         2009(II)-CLR(SC)-74 (Vimal Chand Ghevarchand Jain & others Vs. Ramakant Eknath Jajoo).

33.   Entry in the Birth Register on the basis of an affidavit long after birth and in due course- Document prepared during an undisputed period of time Appreciation.

         AIR-1976-Karnataka-231 (H.Subba Rao Vs. The Life Insurance Corporation of India & another).

         AIR-1965-SC-282 (Birj Mohan Singh Vs. Priya Narain Sinha & others).

         48(1979)-CLT-459(Golak Chandra Rath Vs. Krutibas Rath).

34.   A belated entry in Birth Register cannot outweigh the entries of the School Admission Register, family survey register.

         2006(Supp.-II)-OLR-117 (Basanta Kumar Sahoo Vs. Nrusingha Samal & another).

35.   Presumption of due registration of a document.

         1975(I)-CWR-404 (Punia Sethi Vs. Khetramohan Mohanty and others).

Hindu Marriage Act

36.   Irretrievable breakdown of marriage- no ground for divorce.

         2009(II)-OLR-SC-802 (Vishnu Dutt Sharma Vs. Manju Sharma).

37.   A marriage cannot be dissolved beyond the ground envisaged U/s 13 of the Hindu Marriage Act.

         86(1998)-CLT-761 (Kanchan Sahu Vs. Premananda Sahu).

38.   When marriage is found both emotionally and practically dead, continuance of it would be a cruelty.

         1995(I)-Current Civil Cases-97 Romesh Chandar Vs. Smt. Savitri.

39.   With a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle directed dissolution of marriage.

         2005(I)-OLR-SC-457 (A Jayachandra Vs. Aneel Kaur).

40.   Section 5, 7 Hindu marriage Act- A marriage is not proved unless the essential ceremonies required for solemnization are proved to have been performed.

         AIR-1986-SC-614 (Kanwal Ram Vs. Himanchal Pradesh Administration).

         (2004) 3-SCC-199 (Leema Agarwal Vs. Anupam).

41.   Hindu Marriage Act- Section 7- “Solemnization” appearing in Sec. 7 of Hindu Marriage Act indicates that the marriage has to be celebrated with proper ceremonies and in due form.

         AIR-1965-SC-1564 (Bhaurao Shankar Lokhande Vs. State of Maharastra).

42.   Hindu Marriage- when nature of ceremonies performed not brought out, living together as husband and wife would not confer status of husband and wife. The very expression “whoever marries” must mean that the marriage must be a valid one.

         AIR-1994-SC-135 (Surjit Kaur Vs. Geraj Singh).

43.   Presumption of Marriage is rebuttable if there are circumstances which weaken and destroy that presumption which the Court cannot ignore them.

         AIR-1952-SC-231 (Gokal Chend Vs. Pervin Kumari).

HINDU RELIGIOUS ENDOWMENT ACT.

44.   Private Deity and Public Deity- mode of recognition.

         2006(Supp.-II)-OLR-558 (Basanta Kumar Pradhan Vs. Sri Laxmidhar Sahoo & others).

         87(1999)-CLT-581(SC) (Smt. Marua Vs. V. Muralidhar).

         (3) (1970) 2-SCR-275 (Goswami Vs. Rannchhoddas).

45.   True beneficiaries of religious endowments are not idols but the worshippers and the purpose of endowment is the maintenance of that worship for the benefit of the worshippers.

         AIR-1957-SC-133(Deoki Nandan Vs. Muralidhar & others).

46.   Burden on the person who claims an Institution to be a private one.

         73(1992)-CLT-303 (Hindu Public represented through jadunath Das & others Vs. Sankarsan Das & others).

47.   Sebaitship being property devolves like any other species of heritable property.

         AIR-1979-SC-1682 (Profulla Chorone Requitte and others Vs. Satya Choron Requitte).

48.   Jurisdiction of Civil Court and Endowment Commissioner- Asst. Commissioner of Endowment can decide only whether the trusteeship in relation to a temple in hereditary or not. But neither the Commissioner not the Asst. Commissioner has any jurisdiction to decide whether a particular person is entitled to succeed to the hereditary trusteeship.

         51 (1981)-CLT-12 (Shri Hari Charan Das Babaji Vs. Adhikari Baishnab Charan Das and others).

HIDU SUCCESSION ACT. 

49.   S.15 Hindu Succession Act- Inherited property of an issueless female Hindu dying intestate goes back to the source.

         2010(II)-OLR-(SC)-286 (S.R. Srinivasa & others Vs. S. Padmavathamma).

50.   Age old tradition of law of primogeniture vanished in thin air by stroke of the progressive legislation enacted U/s 4 of the Hindu Succession Act, 1956. Act overrides customary right.

         60(1985)-CLT-70 (Sree Kanak Durga Thakurani and another Vs. Satyaban Chaudhury and others).

51.   Hindu Succession Act, S. 6- A daughter is entitled to a share in the ancestral property as a coparcener and she had been a son with the only exception that Sec. Shall not apply to the partition which has been effected before 20.12.2004.

52.   S. 6 Hindu Succession Act- Since succession spend much prior to coming into force of Amended provision of 2005, it is to be governed by S. 6, as it existed prior to 2005 Amendment.

         AIR-2006-SC-3332 (Anar Devi Vs. Parameswari Devi).

         (2006) 8-SCC-581 (Sheela Devi Vs. Lalchand).

53.   S. 6- A daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. S.6(i) of the Hindu Succession (Amendment) Act, 2005 is prospective in the sense that  a daughter is being treated as a coparcener on and from the commencement of the Hindu Succession  (Amendment) Act, 2005 which came into force with effect from 5.9.2005. According to their Lordships, even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be reopened and S. 6 as amended cannot be given retrospective effect.

         AIR-2008-Madrass-250 (Smt. Bagirathi & others Vs. S. Manivanam & another).

LIMITATION ACT

54.   Permissive possession when turned to adverse possession has to be established.

         1995(I)-OLR-526 (Nirakar Das Vs. Gourhari Das & others).

55.   A sale deed challenged after 17 years clearly time barred.

         AIR-2000-SC-3576(I) (Udhav (dead) by L.Rs. & another Vs. Pandharinath Kishanrao Tak & another).

56.   Delay condonation scope after Final Decree Proceeding.

         1999(I)-OLR-507 (M/S Singal Trading Co. Vs. Orissa Sales Tax Tribunal & another).

AIR-1987-SC-1353 (Collector, Land Acquisition, Anantnag & another Vs. Mst. Katiji & others).

         AIR-1995-Orissa-45 (Narendra Patra vs. Shiba Narayan Taldi  & another).

57.   Adverse possession of Government land.

         1995 (II)-OLR-101(Harihar Mishra Vs. State of Orissa).

58.   Delay condonation vis-a-vis Government.

         2010(I)-CLR-49 (Principal Secretary to Govt. Of Orissa & others Vs. Managing Committee of Sri Jatindranath High School, Dhenkanal & others).

         2010(I)-CLR-27 (Sri Brajabandhu Pati Vs. Collector-cum-Trustee, Debottar, Dhenkanal & others).

         1997-SAR (Civil)-SC-804 (P.K. Ramachandran Vs. State of Kerla & another).

         1999(I)-OLR-357 (Special Land Acquisition Collector, NTPC, Angul Vs. Baidhar Bhutia & others).

         2009(2)-CCC-193 (P & H) (State of Haryana & others vs. Dal Chand & others).

59.   Sufficient cause appearing in S.5 of the Limitation Act, 1963 must receive a liberal construction so to advance substantial justice.

         AIR-2009-SC-2577 (State of Karnataka Vs. Y. Moideen (dead) by L.Rs. and others).

         AIR-1987-SC-1353 (Collector, Land Acquisition Vs.

60.   Delay in bureaucratic methodology imbued with making file-pushing and passing-on-the buck then.

         AIR-2005-SC-2191 (State of Nagaland Vs. Lipok AO & others).

61.   Limitation for setting aside the deed of gift would from the date of gift, not from the date of removal of undue influence.

         AIR(32)-1945-PC-54 (Ramchandra Jivaji Kanago & another Vs. Laxman Shrinivsl Naik and another).

62.   Suit for cancellation of transaction which is governed by S. 59 of the Limitation Act is barred by Limitation if not brought within three years.

         2009(I)-OLR-(SC)-936(Abdul Rahim Vs. Sk. Abdul Zabar).

         AIR-2000-SC-3576-1(Udhav Vs. Pandharinath Kishanrad Tak).

63.   No liberal approach to interpret provisions irrespective of the period of delay which practically amounts to rendering all provisions redundant and inoperative.

         2010(3)-SCC(Civil)-537 (Balwant Singh(dead) Vs. Jagadish Singh and others).

64.   S.27 Limitation Act-when a suit is instituted for possession of immovable property within one years from the widows death under Article-141 of Limitation Act,1908 (as was in force then).

         AIR-1969-SC-204 (Ram Kristo Mandal Vs. Dhankisi Mandal).

O.E.A. ACT

66.   Once the State accepted rent admitting the title in respect of the suit land-party acquired an occupancy right.

         Vol.74(1992)-CLT-454 (Manmohan Rout (and after him Sundari Devi & others Vs. State of Odisha & others).

67.   Civil Court cannot unsettle the settlement made by the Collector under Orissa Estate Abolition Act which was specifically empowered to deal with the matter.

         33(1991)-OJD-145 (Mani Bewa & others Vs. Bijay Kumari of Kanakalata Dei & another).

         38(1972)-CLT-225 (Jogendranath Mohanty & another Vs. Jagannath Mohanty & others).

68.   Settlement under O.E.A. Act- It is not within the competence of the Civil Court to go into the intricacies of settlement made by O.E.A. Collector as it attains finality when not challenged in Appeal within the stipulated period.

         68(1989)-CLT-409 (Chandra Sekhar Das & another Vs. Giridhari Sahu (and after hhim) Chandra Sekhar Sahu and others).

69.   Estate Abolition Act- After vesting the tenants under the ex-intermediary are to be treated as deemed tenants under the State. State has to recognize them as udyats.

         74(1992)-CLT-454 (Manmohan Rout Vs. State of Odisha).

         H.R.-1961-Cut-595 (Basiruddin & another Vs. State of Odisha and others).

70.   Settlement by Estate Abolition Collector confers few and independent right on the settles. That right cannot be taken away unless the same is annulled through the procedure enacted under O.E.A. Act.

         33(1991)-OJD-Civil-145 (Mani Bewa and others Vs. Ajay Kumari @ Kanakalata Dei and another).

PARTITION-HINDU  LAW

71.   Suit for partial partition- Maintainable.

         AIR 1983-SC-409 ( Apoorva Shantilal Shah Vs. Commissioner of Income Tax, Gujrat, Ahmedabad)

         AIR-1982-SC-760(Kalloomal Tapaeswari Prasad Vs. Commissioner of Income Tax, Kanpur).

72.   Competent to execute sale deed to the end of their share to the transferees.

         2009(I)-CLR-560 (Harekrushna Mahakud Vs. Radhanath Mahakud & others).

73.   Coparcenary interest can be transferred subject to condition that the purchaser without the consent of other coparceners cannot get possession and he acquires a right to sue for partition.

         2009(I)-CLR-(SC)-251 (Hardeo Rai Vs. Sakuntala Devi & Ors).

74.   Transfer by co-owner valid to the extent of the share of the transferor- Transferee acquires a right to enforce partition.

         2009(I)-CLR-560 (Harekrushna Mahakud Vs. Radhanath Mahakud & others).

75.   When there is severance of status, coparcenery comes to an end and parties become tenants in common and in that event they can sell their undivided property.

         AIR-1980-SC-1173 (Kalyani (dead) by L.Rs. Vs. Narayan & others).

76.   Sec.4 Partition Act. Sec. 44 of T.P. Act.

         Dwelling house- What constitute.

         1970(I)-CWR-283 (Jati Bewa & others Vs. Shyam Sundar Sahu & others).

         Vol. XXXVI(1970)-CLT-275 (Kuntala Devi & other Vs. Nagu Naik & others).

         Vol. 34(1992)-OJD-137 (Civil) (Gourhari Das Vs. Kalpatar Das and others).

77.   In a suit for declaration of title and possession, parties interested in the disputed properties are on record a decree for partition can be passed.

         2000(I)-OLR-122 (Kibati Naik Vs. Baleswar Naik & others).

         1997(I)-CWR-121(Bui Sahuani & others Vs. Seshad Sahu & others).

78.   Partition- It is for the adversary to prove the earlier division.

         AIR-1986-SC-79 (Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and others).

79.   Partial partition is permissible-Old conception of bringing all the properties into the common hotch potch no more good law.

         AIR-1983-SC-409 (Apoorva Shantilal Shah Vs. Commissioner of Income Tax, Gujrat, Ahmedabad).

80.   Joint family property- transfer by an undivided coparcener void ab initio and not even valid to the extent of its share.

         78(1994)-CLT-397 (Karunakar Rout Vs. Golak Behari Biswal).

81.   Hindu Law- There is no presumption that merely because the family is joint, it possesses joint family property.

         AIR-1961-Orissa-41 (Brajamohan Das Vs. Radhamohan Das).

         2003(I)-OLR-579 (Narayan Nayak Vs. State of Odisha).

SPECIFIC RELIEF ACT

82.   Document executed by Paradanashin lady or illiterate person without full knowledge of contents and consequences is void.

         1988(II)-OLR-582 (Krushna Patra & another Vs. Kami Bewa & another).

         81J(1977)-CLT-26(Somanath Mishra Vs. Narahari Das).

         1997(I)-OLR-591 (Haguri @ Hema Bewa & another Vs. Dhaneswar Bari & another).

83.   Fraud has to be pleaded in proper manner and has to be established- In absence of definite assertions it impossible to accept.

         1996(II)-OLR-112 (M/S Seetal Enterprises, represented through its proprietor Sri Satish Kumar Agarwal Vs. M/S Tinna Chemicals Ltd. & another).

84.   Voidable document requires to be avoided and level of proof is extremely high.

         AIR-2009-SC(Supp.)-1218 (Ranganayakamma & another Vs. K.S. Prakash (dead) by L.Rs. & others).

85.   Jurisdiction of Authority acting under OPLE Act vis-a-vis jurisdiction of Civil Court. Since by the time of initiation of encroachment case by the Revenue authority, plaintiff had perfected his title, such a dispute can only be decided in a Civil Court and not in the OPLE forum.

         1996(I)-OLR-460 (State of Orissa Vs. Bhanu Mali (dead), Nurpa Bewa & others).

         2007(I)-OLR-52 (State of Orissa, through Collector, Sundargarh & another Vs. Daitari Sahu & others).

86.   When plaintiff not in possession, a suit for mere declaration not maintainable.

         2007(II)-CLR-(SC)-105 (Meher Chand Das Vs. Lal Babu Siddique & others).

87.   Undue influence- when words are clear and unambiguous there is no scope for drawing upon hypothetical considerations or under dealing of the parties.

         AIR-1959-SC-1362(Union of India Vs. Kishorilal Gupta).

88.   Relief of demarcation can only be granted by Civil Court.

         AIR-1987-SC-2137 (E. Achhuthan Nair Vs. P. Narayan Nair & another).

89.   Civil Court cannot go into the merit of the dismissal order of an Industrial employee as the workmen has to seek his redress in appropriate Labour Court.

         2006(Supp.-II)-OLR-200 (The Managing Director, Aska Co-Operative Sugar Industry Ltd, Aska Vs. Bhagban Muni).

90.   Date of Birth relates to status of a person- Civil Court empowered to declare status of an individual.

         H.R-1968-Cut-859 (State of Orissa and another Vs. Indupali Babaji).

         AIR-1991-SC-1546 (Ishar Singh Vs. National Fertilizers and another).

91.   Mere existence of an adverse entry does not give rise to a cause of action. It accrues when the right is infringed or threatened to be infringed.

         2010(I)-CJD-SC-140 (Daya Singh & another Vs. Gurdev Singh (dead) by L.Rs. & others).

92.   Date of birth recorded at the time of entry into service cannot be changed except in exceptional circumstances.

         2009(Supp.)-OLR-Vol-I (Union of India, represented by the Chief Post Master General, Cuttac & others Vs. Shri Gourananda Deo).

93.   Record of right does not create or extinguish right and they are only prepared for fiscal purpose of collecting rent.

         1997(II)-OLR-325 (Sarswati Mohanty & others Vs. T. Budu).

94.   A suit based on title is not hit u/s 42 of the Orissa Survey and Settlement Act.

         1978(I)-CWR-209 (State of Odisha & another Vs. Mst. Pana Muli & others).

95.   A suit for demarcation and a dispute regarding identification of boundary between two adjacent land is certainly a dispute of a civil nature and such a dispute is to be adjudicated in the Civil Court.

         AIR 1987-SC-2137 (E. Achuthan Nair Vs. P. Narayanan and another).

96.   Mere entry in settlement paper does not confer or extinguish any title to the property.

         2001(II)-OLR-163 (Rasananda Rout Vs. Commissioner, Consolidation and Settlement, Orissa and others).

97.   A person in possession of the land without title has an interest in the property which is heritable and good against all the world excepting the true owner. This interest unless the true owner interferes is also transferable.

         65(1988)-CLT-669 (Madan Mohan Panigrahi Vs. The Executive Officer, Berhampur Municipality).

PRECEDENT

98.   Precedent- As per the doctrine of binding precedent, the law laid down by the Hon’ble Apex Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

         2005-SCC-(Cri)-546 (Central Board of Dewood Bohra Community Vs. State of Moharasta).

99.   Precedent- A pronouncement of law by a Division Bench is binding on a Division Bench of the same or lesser number of judges.

         AIR-1989-SC-1933 (Union of India Vs. Raghubir Singh (dead) by L.Rs.)

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