Orissa High Court
Sebati Dei Alias Sebati Rautray vs Orissa State Housing Board And Ors. on 19 November, 1999
Equivalent citations: 2000(I)OLR134
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendant No. 1 is the appellant. Plaintiff- respondent No. 1 filed the suit for declaration of title and for a declaration that defendant No. 1 has not derived any right over the disputed property under the alleged Hata-Patta granted by ex-landlord of Rajakanika Estate and that the ex parte decree obtained by defendant No. 1 in Title Suit No. 5/88 against proforma defendants 2 to 4 (present respondents 2 to 4) is void and not binding on the plaintiff and proforma defendant No. 5 (respondent No. 5). The disputed land is Ac. 7.500 decimals from Plot No. 218, Khata No. 303 of Mauza Chandrasekharpur and is presently recorded as separate plot No. 258/2020 in Hal Khata No. 610.
2. Plaintiff is a statutory body established under the Orissa State Housing Board Act, 1968. Plaintiffs' case is as follows : The disputed 'A' Schedule property belonged to ex-landlord Madhusudan Deb of Patia Estate which was recorded in his name as Anabadi Khata No. 303, Plot No. 218 in the Settlement Record-of-Rights of 1931 with a total area of Ac. 184.018 decimals and was recorded as Jhati Jungle. The said land vested in the State Government free from all encumbrances under the Orissa Estates Abolition Act, 1951, in the year 1953. The entire Sabik Plot No. 218 was recorded in the name of the Government under Rakshit Khata No. 472, Plot No. 258 in the Record-of-Rights finally published in the year 1974. The said land was included within the Bhubaneswar Notified Area as per the Notification issued by the Urban Development Department on 25.11.1972. As per the Notification issued by the Revenue Department, all lands included in Bhubaneswar Tahasil were transferred to the management and control of the General Administration Department of the State Government (Defendant No. 5) and as such, the disputed land was under the management and control of the General Administration Department, of the State Government. In the Settlement Record-of-Rights of the year 1988, the disputed land also stood recorded in the name of defendant No. 5. Defendant No. 5 transferred Ac. 31.982 decimals of land including the disputed land to the plaintiff on a premium of Rs. 63,95,400/- as per the allotment order dated 29.4.1989 and the plaintiff took possession of the entire land including the disputed land and thus became owner-in-possession with effect from 29.4.1989. Subsequently while plaintiff was taking steps to construct buildings for allotment to intending purchasers, present defendant No. 1 filed OJC No. 3181 of 1989 against the present plaintiff as well as present defendants 2 to 5. From the recitals in the said writ application, the plaintiff came to know that defendant No. 1 had obtained an ex pane decree against present defendants 2 to 4 in respect of the disputed land in T.S. No. 5/88. It is claimed that the plaintiff deliberately omitted to implead the General Administration Department of the State Government as a party in the said suit and had obtained the ex parte decree against present proforma defendants 2 to 4 who were not concerned with the disputed land in any manner and had no authority to represent the State in respect of the disputed land which belonged to the General Administration Department under the Government Notification. Thus, the ex parte decree obtained against parties having no interest over the disputed land is not binding on the real owner, that is to say, defendant No. 5, or the plaintiff who has derived title as a lessee from defendant No. 5, and the said ex parte decree is void. It is further claimed that in the said suit, present defendant No. 1 "played fraud on the Court by giving false evidence as to the source of her title over the suit land and obtained the decree even without exhibiting the Record-of-Rights of 1931 Settlement". The said Record-of-Rights clearly shows that Anabadi Khata No. 303 stood recorded in the name of Madhusudan Deb of Patia Estate (Killa Patia) and Sailendra Narayan Bhanjadeo from whom defendant No. 1 had allegedly obtained a Hata patta was not the ex-landlord and had no authority to issue any Hata- Patta, nor had any authority to submit Ekpadia to the State Government after vesting showing defendant No. 1 as a tenant. The Ekpadia had not been proved on behalf of defendant No. 1 in earlier Title Suit No. 5/88. The plaintiff further alleged :
".......It would thus be clear that the ex parte decree has been obtained by defendant No. 1 by playing fraud on the Court and by suppressing important documents i.e. the record-of-right of 1931 Settlement and the Ekpadia submitted by the landlord to the State after vesting which forms basis of acquisition of title by defendant No. 1......."
It was further alleged that defendant No. 1 was never in possession" of the disputed land. On these allegations, the suit was filed.
3. Defendants 2 to 4 who were parties to the earlier Title Suit No. 5/88 did not file any written statement. However, defendant No. 5 filed a written statement supporting the case of the plaintiff.
4. Defendant No. 1 filed written statement challenging the averments made in the plaint. It was pleaded that Ac. 7.500 decimals of land had been leased out to defendant No. 1 by Raja of Kanika in the year 1942, who had already taken over the Patia Estate much prior to the lease in favour of present defendant No. 1. It was further claimed that Ekpadia was submitted by Raja of Kanika in favour of defendant No. 1 in respect of the disputed land. Since there was a wrong recording defendants No. 1 filed T.S. No. 5/88 against the State Government wherein present defendants 2 to 4 had been impleaded as defendants 1 to 3. The said suit was validly decreed in favour of present defendant No. 1. It was further pleaded that the said decree is binding on the plaintiff as well as defendant No. 5. It was also claimed that in respect of plot No. 258/2020, possession of defendant No. 1 was noted. The decision in the earlier suit wherein the State Government was represented through the Secretary to Revenue Department, Collector, Puri, and the Tahsildar, Bhubaneswar, was valid and binding. It was further pleaded that the present plaintiff had deliberately suppressed the fact that the Patia Estate had been taken over by Raja of Kanika in the year 1932 and subsequently, Sailendra Narayan Bhanjadeo became the rightful owner in 1935 as would be evident from the decision of the High Court of Orissa, reported in AIR 1951 Ori. 327 (Maheswar Naik and Ors. v. Tikayat Sailendra Narayan Bhanjadeo).
5. On the aforesaid pleadings, the trial Court framed the following issues :
1. Is the suit maintainable ?
2. Is there any cause of action for the plaintiff to file the suit against the defendant ?
3. Is the suit filed within limitation ?
4. Is the suit barred by principles of res judicata ?
5. Is the suit bad for non-joinder of necessary parties ?
6. Has the suit property been properly described ?
7. Is the plaintiff rightful owner, possessor and title-holder over the suit land ?
8. Is the judgment and decree passed by this Court in T.S.5/88 void and not binding to the plaintiff and proforma defendant No. 5 ?
9. To what relief/reliefs the plaintiff is entitled ?
10. Whether the defendant No. 5 was the rightful owner of the suit land ?
11. Whether the plaintiff has acquired possessory title over the suit land from the defendant No. 5 ?
6. Under Issue No. 8, the trial Court held that in the earlier suit T.S. No. 5/88, General Administration Department of the State had not been made a party even though in the Record-of-Rights of 1988, the disputed land was recorded in the name of G.A.Department. It was further found:
"...... although the Plot Number in schedule of the land was mentioned as Plot No. 258 measuring Ac 7.50 decimals, but the decree was made in respect of Plot No. 258/2020. As such, the decree was made not in consonance with the pleadings......"
It was further found that O.E.A. Case No. 95/83 filed by defendant No. 1 was dismissed due to default and defendant No. 1 could not produce any sketch-map showing her possession over Ac 7.50 decimals under plot No. 258. It was concluded :
"......the plaintiff had suppressed the above material documents and obtained the decree without making the G.A. Department as a party and such decree is also not in consonance with the plaint."
It was further concluded that the decree was fraudulently obtained and the judgment and decree in T.S. No. 5/88 are void and not binding on plaintiff and proforma defendant No. 5.
Under Issue No. 4, relating to question of res judieata, it was held that the previous decision would not operate as res judieata on the ground that the earlier decision was obtained fraudulently.
Issue No. 5, relating to non-joinder of necessary party was answered against defendant No. 1 on the finding that materials had not been produced to show which other persons had got interest over the disputed property.
Under Issues Nos 7, 10 and 11, discussed together, it was held that claim of defendant No. 1 over the disputed land was not consistent, specific and genuine and defendant No. 5 was the rightful owner and plaintiff had acquired possessory title over the disputed land.
Issue No. 3, relating to question of limitation, was answered against defendant No. l.
Under Issue No. 6, description of the disputed land was found to be proper and accordingly, the suit was decreed.
7. In the present appeal, it was first contended by the counsel for the appellant that the decision in the earlier suit filed by defendant No. 1 operated as res judieata. In this context, it was submitted that the plaintiff was harping on the point that the Hata-patta issued in favour of defendant No. 1 by Raja of Kanika was not valid, as the disputed land belonged to Patia Estate of which Madhusudan Deb was the ex-landlord, as recorded in the 1931 Record-of-Rights. It is rightly contended by the counsel for the appellant that the aforesaid Record-of-Rights of 1931 totally lost its efficacy and relevance after the Patia Estate was taken over by Raja of Kanika in the year 1932 and subsequently, the property was settled with Sailendra Narayan Bhanja Deo in the year 1935, who became the Zamindar in respect of Patia Estate. Learned counsel for the appellant rightly submitted that all these aspects are clearly elucidated and concluded by the decision of the Orissa High Court reported in AIR 1951 Ori. 327. It is rightly submitted that the trial Court jumped to a conclusion regarding alleged fraudulent claim of present defendant No. 1 on the assumption that the property, in fact, belonged to Madhusudan Deb, ex-Zamindar of Patia, and not to Sailendra Narayan Bhanj Deo, from whom Hata-patta had been obtained by defendant No. 1. This basic misconception regarding the actual state of affairs has coloured the hand of the trial Court to a great extent. As a matter of fact, Ext. H, the certified copy of Record- of-Rights, indicates that subsequently, Sailendra Narayan Bhanja Deo, the Raja of Kanika had become the intermediary in respect of Patia Estate.
8. The lease as such under Ext. A issued by the ex-intermediary of Kanika Estate in favour of defendant No. 1 had not been seriously challenged, but the only ground of challenge was that the Raja of Kanika had no intermediary right over the disputed Patia Estate. From Ext. C, the certified copy of rent-roll, it is apparent that Ekpadia had been submitted in favour of defendant No. 1 in respect of the disputed Ac. 7.50 decimals of land. Even from the Record-of-Rights produced on behalf of the plaintiff, it is apparent that possession of defendant No. 1 was noted in respect of the disputed land. Thus, the conclusion of the trial Court that defendant No. 1 had filed the earlier suit by suppressing material facts and documents is baseless and cannot be supported. From Ext. B, the certified copy of judgment in T.S. No. 5/88, it is apparent that present defendant No. 1 as plaintiff had made all the necessary averments and there is no inkling of any fraudulent suppression of any material fact or misrepresentation of any material fact.
9. The trial Court has also relied upon the fact that in the earlier suit, General Administration Department had not been impleaded as a party as such. From Ext. P. and Ext. E, the certified copies of the Judgment and the decree, it is apparent that in the earlier suit, State of Orissa, represented through the Secretary to Government of Orissa in Revenue Department had been impleaded as defendant No. 1; the Collector, Puri and the Tahsildar, Bhubaneswar, had been impleaded as defendants 2 and 3. The Record-of-Rights produced on behalf of the plaintiff showing General Administration Department as the owner of the property was published in August, 1988, whereas the suit had been filed much earlier to that. As per the requirement of Section 80, Code of Civil Procedure, and Order XXVII, C.P.C., the State Government is to be represented through Secretary. It cannot be said that the State Government had not been properly represented. Moreover, the Collector of the District who is also considered to be a representative of the State in respect of the property in the district had been impleaded as defendant No. 2. It is not the case of the present plaintiff that notice on present defendants 2 to 4 who were respectively defendants 1 to 3 in the earlier suit, had been suppressed in the said suit. On the other hand, there is no explanation whatsoever on the side of present defendants 2 to 4, or defendant No. 5, which is now espousing the cause of the plaintiff, regarding the steps taken or not taken by the parties in the earlier suit. The fact that an ex parte decree had been passed was within the knowledge of all concerned, as would be evident from the averments made in OJC No. 3181/89. Merely because General Administration Department had not been impleaded as a party as such in the earlier suit, it cannot be said that the decree is not binding on the State which had been represented through the Revenue Secretary, or the Collector. The trial Court having proceeded under a wrong conception relating to title over the disputed land prior to the vesting, has held that the earlier decree was fraudulently obtained. As such, the earlier decree must be taken to be binding on all concerned including the plaintiff who claims to be a subsequent lessee.
10. Even otherwise, title of defendant No. 1 over Ac. 7.50 decimals of land has to be found on the basis of the admitted fact that lease had been executed by the ex-Zamindar in her favour in 1942 and subsequently, Ekpadia had been submitted indicating the name of defendant No. 1 in the tenants roll, as would be evident from Exts A and C. Since defendant No. 1 was a tenant in respect of the disputed land prior to vesting, in view of the provisions contained in Section 8 (1) of the Orissa Estates Abolition Act, she continued under the same terms and conditions under the State Government. It is no doubt true that the earlier application filed by the plaintiff numbered as O.E.A. Case No. 95/83 was dismissed for default. But such dismissal for default cannot have the effect of negating the right of defendant No. 1, as such an application was essentially administrative in nature.
11. The trial Court had commented on the fact that in the earlier plaint, claim was relating to plot No. 258, but the decree was in respect of plot No. 258/2020. Even assuming that there is any such discrepancy between the plaint in the earlier suit and the decree, that cannot be a ground to hold that the earlier decree was vitiated by fraud or not binding. From perusal of the judgment in the earlier suit, it is apparent that the plaintiff had laid claim over plot No. 258/2020 with an area of Ac. 7.50 decimals. It is not disputed that even at the time of the earlier suit, the said plot had been recorded in the name of the State with note of possession of defendant No. 1. It is evident that the decree was in accordance with the judgment. If there was any discrepancy between the plaint on the one hand and the judgment and decree on the other, the said point is not available to be raised in a collateral proceeding to impugn the validity of the earlier judgment or the decree.
12. The learned counsel for the appellant submitted with some justification that the plaintiff had not acquired any right in respect of the disputed land, as no lease had been executed by defendants 2 to 4 or defendant No. 5 in favour of the plaintiff and merely a letter of allotment had been issued. It is submitted by him that not title could have passed in favour of the plaintiff on the basis of mere letter of allotment, when the actual lease had not been executed. Though there is some justification in such criticism, the fact that the claim of the plaintiff is now supported by the State would have come to the rescue of the plaintiff if its case would have been otherwise accepted. However, since plaintiff's claim is otherwise found to be not justified on other grounds, already indicated, it is unnecessary to delve into this aspect any further.
13. For the aforesaid reasons, the appeal is allowed. However, there will be no order as to costs.