Orissa High Court
Madhab Biswal And Others vs Brundaban Pradhan And Others on 1 February, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.291 of 1991
From the judgment and decree dated 27.8.1991 and 16.9.1991 respectively
passed by Sri A.K. Daspatnaik, learned Subordinate Judge, Nayagarh in
Title Appeal No.3 of 1986 reversing the judgment and decree dated
29.11.1985and 6.1.1986 respectively passed by Sri P. Das, learned Munsif, Nayagarh in O.S. No.5/23 of 1980/79.
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Madhab Biswal & others .... Appellants
Versus
Brundaban Pradhan & others .... Respondents
For Appellants ... Mr.Santosh Kumar Pattnaik, Sr. Adv.
Mr. P. Pradhan, Adv.
For Respondents ... Mr.Nabakishore Acharya, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 16.01.2018 : Date of judgment: 01.02.2018
Dr. A.K.Rath, J Defendants 2 to 4 are the appellants against a reversing
judgment.
2. Plaintiffs-respondents 1 to 3 instituted a suit for
declaration of title, confirmation of possession and permanent injunction. Case of the plaintiffs was that Ananta Senapati, father of defendant no.1, was the chowkidar of the village. The suit land was recorded in his name. He was in possession of the suit land. In Chowkidari Case No.327 of 1965-66, the land was settled in favour of defendant no.1 under the Odisha Offices of Village Police (Abolition) 2 Act, 1964 (in short, "Act, 1964"). Defendant no.1 used to pay rent. To press his legal necessity, he wanted to sell the land. Defendant no.1 belongs to Schedule Caste. He applied for permission to sell the land under the provision of the Orissa Land Reforms Act (in short "OLR Act") before the S.D.O., Nayagarh, which was registered as Revenue Misc. Case No.401 of 1978. Permission was accorded to him to sell the suit land and other lands. After obtaining permission, he sold the suit land to the plaintiffs for a consideration of Rs.5000/- by means of a registered sale deed dated 2.12.1978. Delivery of possession was made to him. The plaintiffs acquired title over the suit land. They used to raise paddy crops on the land. Defendants have no semblance of right, title and interest over the same. Defendants 2 to 4 instituted Title Suit No.20/3 of 1972/71 in the court of the learned Munsif, Nayagarh against defendant no.1 for specific performance of contract. The suit was dismissed. They filed Title Appeal No.16 of 1972 before the learned Sub-Judge, Nayagarh, which met with the same fate. The matter was carried to this Court in Second Appeal No.161 of 1977. The appeal was eventually dismissed. Defendant nos.2 to 4 had failed in their attempt to forcibly occupy the suit land. With this factual scenario, they instituted the suit.
3. Defendants 2 to 4 filed a written statement denying the assertions made in the plaint. Case of the defendants was that the suit properties mentioned in Schedule-A was originally Chaukidari Jagiri lands. Defendant no.1 was the village chaukidar. Defendant nos.2 to 4 are in possession of the suit land. Defendant no.1 filed Chaukidari Case No.327 of 1965-66 for settlement of the land. The Tahasildar settled the suit properties in favour of defendant nos.1 and 2. Patta was issued in their favour. Defendant no.2 was in cultivating possession of the suit land. Defendant no.1 filed two 3 petitions before S.D.O., Nayagarh for permission to sell the suit land. After obtaining permission, he sold Ac.0.18 dec. of land on 07.04.1970 and executed registered sale deed on 23.06.1970 in favour of defendant no.2. Defendant no.1 also entered into an agreement for sale with defendant no.2 to alienate Ac.0.30 decimals of land along with Ac.0.18 dec. Consideration was fixed at Rs.624/-. Defendant no.1 received Rs.550/- in advance. It was agreed upon that the balance consideration would be paid at the time of registration of the sale deed. After obtaining permission, defendant no.1 demanded higher consideration. The consideration in respect of Ac.0.18 dec. of land was fixed at Rs.1000/-. Rs.550/- was paid in advance. It was agreed upon that the balance of Rs.450/- would be paid at the time of registration. Defendant no.1 agreed to sell the land mentioned in Schedule-B to defendant nos. 2 to 4 and entered into an agreement for sale on 05.10.1970 for a consideration of Rs.1500/-. Out of the said amount, he received Rs.1200/- as advance and agreed to take balance consideration after obtaining permission and would execute the registered sale deed in favour of defendant nos.2 to 4. Defendant no.1 did not execute the sale deed even after obtaining permission. Defendant no.1 before obtaining permission from the S.D.O. to sale Schedule-B property executed a registered sale deed in favour of Aseli Dei on 22.02.1968 in respect of the land described in Schedule-C. No consideration was paid. No permission was obtained. Defendant no.1 also executed a sham sale deed without consideration on 14.9.1970 and 15.10.1970 in respect of certain properties mentioned in Schedule-D for a total consideration of Rs.1450/- in favour of Agadhu Mallk. The same was declared as null and void in T.S No.3 of 1971. Defendant no.1 also executed a sale deed on 27.04.1968 in favour of defendant no.5.
4Registered sale deed dated 2.12.1978 executed by the Defendant No.1 in favour of the plaintiffs was without consideration. The plaintiffs had no right, title and interest in respect of the suit land. The defendant no.2 to 4 are in possession of the suit land from the date of agreement. They are paying rent. They are in possession of the suit land since the date of agreement. Therefore, the defendants are protected under Sec. 53(A) of the T.P Act.
4. Defendant no.1 filed a written statement supporting the case of defendants 2 to 4. Defendant no.5 filed a written statement supporting the stand of the plaintiffs.
5. On the inter se pleadings of the parties, learned trial court framed as many as eleven issues. Parties led evidence, both oral and documentary. Learned trial court came to hold that the plaintiffs have not acquired title on the strength of the sale deed dated 2.12.1978. They are not in possession of the suit land. No permission was accorded by the S.D.O., Nayagarh authorising the defendant no.1 to alienate the suit land. The alleged sale is a misnomer. The suit is not maintainable since the State was not a party. Defendants 2 to 4 have not acquired title by way of adverse possession. Held so, it dismissed the suit. The plaintiffs filed Title Appeal No.3 of 1986 before the learned Subordinate Judge, Nayagarh. Learned appellate court came to hold that the suit land has been settled in favour of defendant no.1 alone under the provisions of the Act, 1964. The suit land was sold by defendant no.1 to the plaintiffs. Possession of the land was duly delivered to the vendee. Held so, it allowed the appeal.
6. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.A, C, E, F, H and I of the appeal memo. The same are -
"A. Whether the learned Sub-Judge was justified in setting aside the settlement in Choukidari Case No.327 of 65-66 in 5 favour of D.1 & D.2 in view of the bar u/s.8(4) of the Orissa Village Police Officers Abolition Act, 1964 specifically when the Defendant no.2 was admitted to be a tenant of the land by Defendant No.1 and Section 4(1) of the said Act authorizes settlement on tenants in possession. C. Whether the learned Sub-Judge has committed error of record by misquoting and misinterpreting the judgment of the Hon'ble High Court in S.A No.161/77 on the question of Section 53-A of the T.P Act when no such finding was recorded in that case.
E. Whether the plaintiffs are debarred from challenging the Choukidari Settlement after 10 years when their Vendor Defendant no.1 accepted the said settlement completed in 1969 more so when the pattas were granted and the State Government accepted rent from Defendant Nos.2 to 4 conferring fresh title over them (in case of settlement of Defendant No.2 being invalid the same would vest on State Government and not deemed to be settled on Defendant No.1).
F. Whether in view of existence of prior contract for sale dt.5.10.70 coupled with delivery of possession and part payment the defendant no.1 has any right and title to sell the land to plaintiff without recovering possession from the defendant no.2 to 4 and whether the plaintiff as purchaser with or without consideration having notice of the earlier agreement for sale dt.5.10.70 can recover possession for sale from the Defendant No.2 to 4 in view of Section 53-A of the T.P Act.
H. Whether the agreement dt.5.10.70 for sale of plot no.235 and 50% of Plot nos.259, 499 and 515 was subsisting and the agreement for sale dt.3.2.79 (Ext.D) and 14.6.79 (Ext.F) were executed in performance of the said agreement and the abatement of the suit for specific performance in T.S No.3/71 under Section 40(2) of the O.L.R Act overruling the judgment in S.A No.16 of 1977, did not obliterate the agreement for sale and kept it under suspended animation till the end of ceiling proceeding if any. More so in view of the decision reported in 1985 Vol. CLT P.44 over ruling the judgment in S.A No.161 of 1977 and holding that section 40(2) will not applicable to a case below the ceiling limit.
I. Whether the finding of the lower appellate court that plot no.235 in Khata No.50 was intended to be sold in R.S.D. dt.2.12.78 is perverse in view of the order of permission u/s 22 of the O.L.R Act vide Ext.2 and the R.S.D. dt.2.12.78 vide Ext.1 does not mention about plot no.235 as documentary evidence excludes oral evidence."6
7. Heard Mr. Santosh Kumar Pattnaik, learned Senior Advocate along with Mr. P. Pradhan, learned counsel for the appellants and Mr. Naba Kishore Acharya, learned counsel for the respondents.
8. Mr. Pattnaik, learned Senior Advocate for the appellants submitted that the civil court de hors its jurisdiction in examining the correctness of the order passed by the Tahasildar in Chowkidari Case No.327 of 1965-66 and set aside the same. Learned appellate court misinterpreted the judgment passed by this Court in Second Appeal No.161 of 1977 on the question of Sec. 53(A) of the T.P Act. Notwithstanding the dismissal of Second Appeal No.161 of 1977, the principles enumerated in Sec. 53(A) of the T.P Act shall apply in the said case. Elaborating his submission, he contended that the agreement to sell was entered into on 5.10.1970. The suit for specific performance was pending. The plaintiff had prior notice for agreement to sell.
9. Per contra, Mr. Acharya, learned counsel for the respondents submitted that the civil court has ample jurisdiction to examine the case where statutory tribunal has not acted in conformity with the judicial procedure.
10. The suit land was a part of choukidar jagiri estate given to the choukidar by the then ex-ruler of Nayagarh. Defendant nos.1 and his father were choukidars of the village. The Act, 1964 came into force on 28.3.1964. All such lands given as service jagir lands to the choukidar were held to be jagir lands under Sec. 2(g) of the Act. In the instant case, the Tahasildar settled the land under the provision of the Act in the name of defendant no.1 in Chowkidari Case No.327 of 1965-66. While settling the suit land and other lands, the Tahasildar added defendant no.2 in the rent roll. Defendant no.2 7 belongs to General Caste. He was not the choukidar. In Choukidari Case No.327 of 1965-66, one Aparti Nahak had staked claim. The same was objected to. Aparti Nahak did not press objection. Further, the objection petitions filed by defendants 5 and 6 were rejected in limine. Learned appellate court came to hold that the Tahasildar has not assigned any reason as to why he had impleaded defendant no.2 in the case. The Tahasildar had not come to the conclusion that defendant no.2 was a co-sharer or a tenant under defendant no.1. Name of defendant no.2 did not find place in the order. It further held that defendant no.2 filed a petition under Ext.4/b claiming title over the suit property by way of adverse possession. The Tahasildar did not consider the matter in proper perspective under Sec. 4 of the Act, 1964. In the order vide Ext.5 the name of defendant no.2 does not find place. Thus settlement of suit plot in the name of defendant no.2 along with defendant no.1 had not made in pursuance of the provision of Sec. 4 of the Act, 1964. Learned appellate court further held that the civil court has ample jurisdiction in deciding the issue. It further held that the Tahasildar while passing the order in Choukidary case had not taken into consideration the provision of the statute in impleading defendant no.2. The claim of ownership and impleadment of defendant no.2 along with defendant no.1 is a misnomer. The settlement made by the Tahasildar in the name of defendant no.2 was without jurisdiction. Since the land has been settled, impleadment of State as a party does not arise. It further held that defendant no.2 is entitled to avail the protection as contemplated in Sec.53-A of the T.P Act
11. Secretary of State v. Mask & Co., AIR 1940 Privy Council 105 is a locus classicus on the subject. It was held -
"....It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that 8 such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
12. Thus the civil court has jurisdiction to entertain the suit in two contingencies enumerated in Mask & Co. (supra).
13. After abolition of Chowkidari system, Chowkidari Case No.327 of 1965-66 was initiated. Admittedly defendant no.1 and his father were Chowkidars. Defendant no.2 belongs to General Caste. The Tahasildar de hors its jurisdiction in impleading defendant no.2 in Chowkidari Case. Sub-Sec. (1) of Sec. 4 of the Act, 1964 provides that all Jagir lands resumed under the provisions of this Act shall, subject to the provisions of Sub-sec. (2), be settled with rights of occupancy therein on a fair and equitable rent to be determined in the prescribed manner, with the Village Police Officer or with him and all those other persons, if any, who may be holding the land or any part thereof as his co-sharers or as tenants in pursuance of any local custom, usage or practice under him or under such co-sharer to the extent that each such person was in separate and actual cultivating possession of the same immediately before the appointed date. The words "the Village Police Officer or with him and all those other persons, if any, who may be holding the land or any part thereof as his co-sharers or as tenants in pursuance of any local custom, usage or practice under him or under such co-sharer to the extent that each such person was in separate and actual cultivating possession of the same immediately before the appointed date"
appearing in Sec. 4 of the Act, 1964 shall mean the Village Police Officer or with him and all those other persons who may be holding the land or any part thereof as his co-sharers or as tenants.9
14. Admittedly the defendant no.1 was the Village Police Officer. Defendant no.2 was neither a co-sharer nor a tenant. In view of the same, the Tahasildar de hors its jurisdiction in settling the land in favour of defendant no.2 along with defendant no.1.
15. The Tahasildar is a creature of the statute. He cannot travel beyond the statute. In Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253 held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The said proposition of law is based on a legal maxim "Expressio unius est exclusio alterius", which means "The express mention of one thing implies the exclusion of another". Thus inescapable conclusion is that the Tahasildar had not acted in conformity with the fundamental principle of judicial procedure. The order of settlement so far as defendant no.2 is concerned is bad in law. The claim put- forth by defendant no.2 was misconceived. Thus for all intents and purports the same can be construed as settlement in favour of defendant no.1 only. Learned appellate court has rightly held that the preparation of rent roll in favour of defendant no.2 along with defendant no.1 was without jurisdiction. Any order passed to that extent is void. To press his legal necessity, defendant no.1 sold the same to the plaintiffs by means of a registered sale deed for a valid consideration and thereafter delivered possession. The plaintiffs are in possession of the suit land.
16. The suit instituted by defendant nos.2 to 4 against defendant no.1 for specific performance of contract had been dismissed. Defendant nos.2 to 4 had unsuccessfully challenged the same in Title Appeal No.16 of 1972. Thereafter, they filed Second Appeal No.161 of 1977, which was eventually dismissed. Learned 10 appellate court has rightly held that protection under Sec. 53(A) of the T.P Act is not available to the defendants. The substantial questions of law are answered accordingly.
17. In the result, appeal fails and is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 1st February, 2018/Pradeep