Orissa High Court
Bedananda Das vs State Of Orissa And Another on 29 March, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.14 of 1997
From the judgment and decree dated 25.9.96 and 10.10.1996
respectively passed by Shri M.K. Mohanty, learned 1st Addl. District
Judge, Berhampur in T.A. No.9/94 (T.A. No.60/93 GDC) confirming
the judgment and decree dated 6.9.93 and 18.9.93 respectively
passed by Sri B. Das, learned Subordinate Judge, Aska in T.S. No.13
of 1989.
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Bedananda Das ............... Appellant
---versus--
State of Orissa and another .................. Respondents
For Appellant : Mr. P.V.B. Rao, Advocate
For Respondents : Mr. S. Mishra, Addl. Standing Counsel
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 17.03.2017 │ Date of Judgment: 29.03.2017
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Dr. A.K. Rath, J.This appeal is directed against the judgment and decree dated 25.9.96 and 10.10.1996 respectively passed by the learned 1st Addl. District Judge, Berhampur in T.A. No.9/94 (T.A. No.60/93 GDC) confirming the judgment and decree dated 6.9.93 and 18.9.93 respectively passed by the learned Subordinate Judge, Aska in T.S. No.13 of 1989
02. The case of the plaintiff is that originally the suit land belonged to ex-estate of Sanakhemundi. One Laxman Gouda was a raiyat under the Zamindar of Sanakhemundi. The Zamindar granted 2 raiyati patta to him. To press his legal necessity, Laxman Gouda sold 40 bharanas, i.e., about Ac.8.00 of land to Somnath Padhi for a valid consideration by means of a registered sale deed. Somnath Padhi was in possession of the land and used to pay rajbhag to the estate. He became the defaulter of payment of rent for which, the Court of Wards, which was managing the affairs of the estate on behalf of minor Zamindar, filed suits in Rent Court under the Madras Estate Land Act for realization of rent. The same was decreed. Thereafter Somnath Padhi paid rent and obtained receipts. He reclaimed adjoining 0.26 cents of land and as such he was in possession of Ac.8.26 cents of land. Somnath Padhi, for his legal necessity, alienated the land to one Tareni Charan Mishra for a consideration of Rs.1000/- and thereafter delivered possession. Tareni Charan Mishra inducted the plaintiff as a tenant and executed permanent lease on 15.4.1958 in his favour. The plaintiff continued as a permanent lessee and cultivated the land through his father till 1964. Thereafter Tareni Charan Mishra alienated the land to the plaintiff for a valid consideration by means of a registered sale deed dated 31.12.1964 and thereafter delivered possession. While the matter stood thus, the estate of Sanakhemundi vested in the State of Orissa on 1.6.1953. Though the land was recorded as Abadi Jogya Anabadi, but the plaintiff cultivated the same as a raiyat. Three encroachment cases had been initiated against the plaintiff. He appeared before the Tahasildar, Digapahandi and claimed that he is a raiyat. He had also filed number of documents evidencing the payment of rent. Thereafter the Tahasildar sent the entire file to the S.D.O., Berhampur to examine as to whether the encroacher has acquired title by way of adverse possession. No order was passed. After issuance of notice under Sec.80 C.P.C., he instituted the suit seeking declaration that he is a raiyat in respect of the suit land.
303. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The defendants denied that the plaintiff was a raiyat. The specific case of the defendants is that the suit plots were recorded as Jhatibana in Abada Jogya Anabadi khata. The same is the exclusive property of the Government. The record of right was published on 28.11.1948 in the name of the Government. The plaintiff has not challenged the same. Since the plaintiff was in unauthorised occupation of the Government land, several encroachment cases were initiated against him. The Tahasildar sent the records to the S.D.O., Berhampur. Thereafter the S.D.O., Berhampur considered the cases and returned the file vide office letter dated 11.10.1988 for fresh enquiry which is pending disposal.
04. Stemming on the pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf eleven documents had been exhibited. The defendants had examined two witnesses and on their behalf four documents had been exhibited.
05. Learned trial court came to hold that Ext.10 series, rent receipts, are no way connected to the suit land as no khatian number or extent of land had been mentioned in the rent receipts. The plaintiff had not taken any steps to get the land mutated in his name. He could not have paid rent as no record of right was prepared in his name. The documents had been created for the purpose of the suit. D.W.1 had stated that in the final record of right, the suit land had been recorded as Abada Jogya Anabadi. The same was classified as 'Jhatibana' in the record of right of the year 1948. Three encroachment cases had been initiated against the 4 plaintiff in the year 1971. The same are sub-judice. Without verifying the record of right, the plaintiff purchased the Govt. land in the year 1964. The persons without having title over the suit land one after the other had transferred the same. Since the O.P.L.E. proceedings are pending, the court has no jurisdiction to declare the title of the plaintiff. Held so, learned trial court dismissed the suit. The plaintiff had unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Berhampur in T.A. No.60 of 1993, which was transferred to the court of the learned 1st Additional District Judge, Berhampur and renumbered as T.A. No.9 of 1994. Learned lower appellate court on a threadbare analysis of the evidence on record as well as pleadings came to hold that the plaintiff had purchased the land from a trespasser. His continuous cultivation for 25 years was in the capacity of an independent trespasser. The independent trespassers cannot tack their possession so as to acquire title by adverse possession. The suit lands were recorded in the name of the State. The jurisdiction of the civil court is barred under Sec.16 of the O.P.L.E. Act. The estate was vested in the State on 1.6.53 free from encumbrance. The respondents are the owners of the same. Accordingly, ROR was prepared in the year 1984. The persons having no title transferred the lands after 1968. Learned lower appellate court dismissed the appeal.
06. The second appeal was admitted by a Bench of this Court on the following substantial question of law.
"Whether the civil court has jurisdiction to arrive at a conclusion regarding royati right vis-à-vis the provisions of Orissa Estate Abolition Act."5
07. Heard Mr. P.V.B. Rao, learned counsel for the appellant and Mr. S. Mishra, learned Addl. Standing Counsel for the respondents.
08. Mr. Rao, learned counsel for the appellant submitted that originally the suit land belongs to ex-estate of Sanakhemundi. The ex-intermediary granted raiyati patta to one Laxman Gouda. Laxman Gouda was a raiyat. For his legal necessity, he alienated the land to Somnath Padhi. Thereafter Somnath Padhi alienated the land to one Tareni Charan Mishra. Thereafter Tareni Charan Mishra alienated the land to the plaintiff for a valid consideration by means of a registered sale deed. Possession of the land was duly delivered to the plaintiff. Though the estate vested in the State, but the right of the plaintiff remained unaffected. Since it is a raiyati land, initiation of encroachment cases are bad in law. He further submitted that since the plaintiff is in possession of the suit land for more than thirty years, he has perfected title by way of adverse possession. Thus under the provisions of Orissa Prevention of Land Encroachment Act (hereinafter referred to as "OPLE Act"), the land could have been settled in his favour. The entries made in the ROR do not create title nor extinguish title. He further submitted that notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to entertain the suit.
09. Per contra, Mr. Mishra, learned Additional Standing Counsel for the respondents submitted that originally the land belong to ex-intermediary. The estate vested in the State of Orissa on 1.6.1953 free from all encumbrances. Record of right was published on 28.11.1948 in the name of the Government. The kissam of the land was Jhatibana. Since the plaintiff was unauthorised occupation of the suit land, encroachment cases had 6 been initiated against him. The same are pending. Both the courts below negatived the contentions of the plaintiff and dismissed the suit.
10. Placing reliance on a decision of this Court in the case of Narayan Chandra Yotish vs. The State of Orissa and another, 73 (1992) C.L.T. 860, learned trial court came to hold that the suit is not maintainable.
11. The civil court has plenary jurisdiction. Seventy-five years ago, the Privy Council in the case of Secretary of State vs. Mask & Co., AIR 1940 PC 105 held that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the 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. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199, a Bench of this Court came to hold that the decision of the apex Court in the case of Govt. of Andhra Pradesh vs. Thummala Krishna Rao and another, AIR 1982 SC 1081 was not followed in Narayan Chandra Yotish (supra). Taking cue from Narayan Chandra Yotish (supra) and the decisions of this Court in the case of Ghasi Khamari and others vs. State of Orissa and others, ILR 1980 (1) Cutt.582, Satyabadi Naik vs. The State of Orissa, AIR 1979 Orissa 8, this Court held that the Civil Court had jurisdiction to decide the question raised before it. It was further held that the decision of the learned Single Judge in the case of Narayan Chandra Yotish (supra) did not take note of the two 7 Bench decisions of this Court arising under the very same Act as well as the decision of the apex Court rendered under an Act containing pari materia provisions must be taken to have been wrongly decided.
13. In view of the above, notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title.
14. Sec.39 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as "O.E.A. Act") provides:
"39. Bar to jurisdiction of Civil Courts in certain matters- No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject to any application made or proceeding taken under the side Chapters."
15. This Court in the case of Benudhar Dalai vs. The State of Orissa, AIR 1958 ORISSA 197 held:
"Section 39 of the Orissa Estates Abolition Act bars the jurisdiction of the civil court in respect of any order passed under Chapters II to VI, or concerning any matter which is or has already been the subject of any application made, or proceedings taken under the said Chapters. This bar will undoubtedly apply as regards the Collector's finding that the lease or settlement was made with the object of (1) defeating any of the provisions of the Act or (2) obtaining higher compensation thereunder. But the bar will not apply to his finding as regards the date of lease or settlement. The civil court has always jurisdiction to examine whether a special court constituted by a special Act, has acted within its jurisdiction unless that power is expressly taken away."
16. A Division Bench of this Court in the case of Achutananda Swain vs. Hadibandhu Swain and others, 1986 (II) OLR-427 held that according to the Sec.39 of the O.E.A. Act, the following classes of suits cannot be instituted in the civil court:
8(1) A suit in respect of any entry in or omission from a compensation assessment roll.
(2) A suit in respect of any order passed under Chapters II to VI.
(3) A suit concerning any matter which is or has already been the subject of any application made or proceeding taken under Chapters II to VI.
It further held that Sec.39 of the O.E.A. Act does not create a bar for establishment of the rival claims of tenancy rights in the civil court.
17. This Court in the case of Chandra Sekhar Rath vs. The Collector, Dhenkanal and others, 67 (1989) C.L.T.-493, held that under Sec.8(1) of the O.E.A. Act, a person who immediately before the date of vesting of an estate in the State Government was in possession of a holding as a tenant under an intermediary shall on and from the date of vesting be deemed to be a tenant of the State Government and such person shall hold the land under the same rights and subject to the same restrictions and liabilities as he was entitled and subject to immediately before the date of vesting. It further held that since the plaintiff was a tenant under the Deity prior to the vesting, on the date of vesting he would be deemed to be a tenant under the State. Such a declaration cannot be given by the Collector under the Estates Abolition Act and it is only the Civil Court which is the proper authority to decide such claim. For declaration of such right section 39 of the Orissa Estate Abolition Act cannot be held to be a bar.
18. Reverting to the facts of this case, the settlement record of right was published in the year 1948 in the name of the Government of Orissa. The estate of Sanakhemundi vested in the State of Orissa on 1.6.1953 free from encumbrance. The suit land 9 was classified as 'Jhatibana'. Both the courts have rightly held that the plaintiff had purchased the land from a trespasser. The persons without valid title over the suit land had transferred the same. Further, the court below came to hold that Ext.10 series, rent receipts, are no way connected with the suit land, since no khatian number or extent of land had been mentioned therein. The same had been created for the purpose of the suit. There is no perversity or illegality in the finding of the courts below. The substantial question of law has been answered accordingly.
19. In the result the appeal, devoid of any merit, is dismissed. But in the circumstances of the case, the parties are to bear their own cost throughout.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 29th March, 2017/Basanta