Orissa High Court
Unknown vs Government Of Orissa & Others on 15 March, 2019
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.145 of 2003
From the judgment and decree dated 4.3.2003 and 21.3.2003 respectively
passed by Sri M.N. Pattnaik, learned District Judge, Khurda at
Bhubaneswar in RFA No.45 of 2002 confirming the judgment and decree
dated 24.8.2002 and 7.9.2002 respectively passed by Sri K.C. Barik,
learned Civil Judge (Junior Division), Bhubaneswar in Title Suit No.52 of
1990.
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Panchu Rout .... Appellant
Versus
Government of Orissa & others .... Respondents
For Appellant ... Mr.Ramakanta Mohanty, Sr. Adv.
Mr. Swapnesh Mishra, Adv.
For Respondents 1 to 3 ... Mr. Ram Prasad Mohapatra, AGA
For Respondent No.5 ... Mr.Debasis Nayak, Adv.
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 07.03.2019 : Date of judgment: 15.03.2019
Dr. A.K.Rath, J This appeal at the plaintiff's instance assails the affirming judgment of the learned District Judge, Khurda at Bhubaneswar in RFA No.45 of 2002.
2. The dispute pertains to an area admeasuring Ac.0.180 dec. appertaining to Khata No.619, Plot No.457/1892 of Mouza- Chandrasekharpur. The kissam of the land is Gochar. The suit land situates in the capital city of Bhubaneswar.
3. The case of the plaintiff is that originally the suit land belonged to the ex-intermediary of Kanika. On 6.9.1945, the ex- intermediary inducted his father Banambar Rout as a tenant and issued Hat patta in his favour. The estate vested in the State in the 2 year 1953 after coming into operation of the Orissa Estates Abolition Act (in short, "the OEA Act"). His father possessed the land and raised vegetables therein. Consequent upon vesting of the estate in the State, his father became a tenant under the State. He and his father had built up a residential house over the suit property. His father died in the year 1974. He is residing in the house and running a hotel therein. He is in possession of the suit land since the time of his father peacefully, continuously and with hostile animus to the State for more than thirty years. In the remarks column of the hal settlement record-of-right, his possession has been reflected. While matter stood thus, on 6.9.1989 the agents of the defendants forcibly entered into the suit land and threatened to dispossess him. He approached this Court in OJC No.2922 of 1989. This Court directed that he shall not be evicted without complying the requirement of law. Thereafter, he filed T.S. No.213 of 1989 for declaration of title and permanent injunction. Defendant filed a written statement pleading, inter alia, that a case under the Orissa Public Premises (Eviction of Unauthorised Occupants) Act had been initiated against him. On 5.4.1990, the officials of defendant no.5 stacked the materials over the suit land and stated that the suit land along with other lands had been allotted to it on 9.4.1990 by the Government in General Administration Department. During pendency of the suit, defendant no.3 initiated OPP Case No.69/90 for eviction. In the said case, amin had measured the land and submitted a report that a portion of the wall of his house is standing over the Government land. Taking advantage of his absence, defendant no.5 had constructed two numbers of HIG house. He made a protest; whereafter the construction was stopped. On 3.7.1993, defendant nos.3 and 5 with the help of police forcibly entered into the suit land. With this factual scenario, he instituted the suit for declaration of 3 title, confirmation of possession, permanent and mandatory injunction.
4. Defendant no.3 filed a written statement pleading, inter alia, that neither the father of the plaintiff, nor the plaintiff had right, title and interest over the suit land. Raja of Kanika had not settled the land in favour of plaintiff's father. Hat Patta, Ext.1, is a forged document. The suit land vested in the State after abolition of the intermediary estate. The suit land had been recorded in the name of the Government in 1973 ROR. Kissam of the land is Gochar.
5. Defendant no.5 filed a written statement taking a similar stand to that of defendant no.3. It is pleaded that the suit land is communal land. The suit is liable to be dismissed for non-joinder of the villagers of Chandrasekharpur, who are necessary parties.
6. Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. On an anatomy of pleadings and evidence, learned trial court held that the plaintiff has no right, title and interest over the suit land. Though no specific issue on adverse possession was framed, it dealt with the same and rendered a finding that the plaintiff had not perfected title by way of adverse possession. Held so, it dismissed the suit. Unsuccessful plaintiff filed RFA No.45 of 2002 before the learned District Judge, Khurda at Bhubaneswar, which was eventually dismissed.
7. The second appeal was admitted on the substantial questions of law enumerated in ground nos.(a) to (c). The same are -
"(a) Whether the learned courts below were correct in accepting the plea of the Estate Officer, Defendant No.3, combating the plaintiffs case when the same authority had adjudicated inter-parties under the provisions of Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1962 (Ext.11) that the plaintiff is unevictable because of 4 title through possession and the same therefore operates as res judicata under Sec.11 Exp.VIII of CPC.
(b) Whether the learned courts below were correct in dismissing the plaintiff's suit in view of the categorical direction of this Hon'ble Court in OJC No.2922/1989 not to evict the plaintiff without following due of process, when
(i)Admittedly there is no proceeding under the O.P.P Act has yet been initiated against the plaintiff;
(ii)Admittedly the OPP authority has conclusively decided inter parties that plaintiff cannot be evicted;
(iii)Admittedly the defendants are trying to evict the plaintiff by force without taking recourse to law;
(c) Whether the plaintiff's suit can be dismissed for non-
joinder of villagers merely because the suit land has been recorded as Gochar when there is no material to indicate that the suit land has been set apart for communal use as required under Sec.2 of the Orissa Communal Forest and Private Lands (Prevention of Alienation) Act, 1948."
8. Heard Mr.Ramakanta Mohanty, learned Senior Advocate along with Mr. Swapnesh Mishra, learned counsel for the appellant, Mr. Ram Prasad Mohapatra, learned Addl. Government Advocate for respondents 1 to 3 and Mr. Debasis Nayak, learned counsel for respondent no.5.
9. Mr. Mohanty, learned counsel for the appellant submitted that originally the suit land belonged to ex-intermediary of Kanika. The father of the plaintiff was inducted as a tenant. Ex-intermediary issued a Hat Patta to him on 6.9.1945, Ext.1. After abolition of estate, he became a deemed tenant under Sec.8(1) of the OEA Act. The father of the plaintiff constructed a building over the suit land. The plaintiff is running a hotel therein. Since defendants tried to demolish the house without taking recourse of law, plaintiff filed a writ petition being OJC No.2653 of 1989 praying not to evict him without due process of law. The writ petition was disposed of with a direction not to dispossess the plaintiff without following due process of law. Placing reliance on the order dated 25.9.1993, Ext.11, passed by the Estate Officer, he submitted that defendant no.3 dropped OPP 5 Case No.68 of 1990 with a finding that the plaintiff is in continuous possession over the suit land from the time of his father. There is no evidence to disbelieve the rent receipts from 6.9.1945. The note of possession in the ROR cannot be ignored. Defendants have not initiated any proceeding against the plaintiff for eviction. The plaintiff being in possession of the suit land is entitled to be protected from dispossession, unless and until he is evicted from due process of law. The Court has ample power under Order 7 Rule 7 CPC to mould the relief. He further submitted that in earlier two writ petitions, this Court mandated that the plaintiff can be dispossessed by following due process of law. No proceeding has been initiated to evict the plaintiff from the suit land. There is no pleading that the suit property was set apart for communal use as required under Sec.2 of the Orissa Communal Forest and Private Lands (Prevention of Alienation) Act, 1948. Thus the villagers of Mouza-Chandrasekharpur are not necessary parties to the suit.
10. Per contra, Mr. Mohapatra, learned AGA submitted that the plaintiff claims title over the suit property as a deemed tenant and simultaneously he claims title by way of adverse possession. The plea is inconsistent. The plaintiff has not taken the plea that his father was a tenant under the ex-intermediary and after abolition of the estate, he became a deemed tenant under Sec.8(1) of the OEA Act. The plea is raised for the first time in this appeal. It is a mixed question of fact and law. He further submitted that the estate vested in the State is free from all encumbrances. The landlord had not produced ekpadia in the name of the plaintiff or his father. There is no evidence on record that the tenant ledger was opened in the name of his father or the plaintiff in the tahasil office. He further submitted that the plaintiff cannot maintain a suit for declaration of title by way of adverse possession.
611. Mr. Nayak, learned counsel for respondent no.5 submitted that the order passed by the Estate Officer, Bhubaneswar, vide Ext.11, shall not operate as res judicata. Res judicata shall come into operation when the matter directly and substantially in issue has been directly and substantially in issue in a former suits between the same parties. Respondent no.5 was not a party to the eviction proceeding initiated under the Orissa Public Premises (Eviction of unauthorised Occupants) Act, 1962. Therefore, the order dated 25.9.1993 cannot operate as res judicata against respondent no.5. He further submitted that the eviction proceeding was dropped not on the strength of the plaintiff's case, but on the weakness of State's defence. The Estate Officer while deciding the application under the Orissa Public Premises (Eviction of unauthorised Occupants) Act has limited jurisdiction. The Estate Officer de hors the jurisdiction in deciding the right, title and interest of the parties. Eviction proceeding before the Estate Officer is summary in nature. The suit is not hit by res judicata. He further submitted that substantial question no.2 is a legal fiction having no independent existence. He further submitted that the kissam of the land is Gochar. Learned appellate court has rightly held that it was incumbent on the part of the plaintiff to implead the villagers of the locality as parties. To buttress the submission, he cited the decision of the apex Court in the case of Pandurang Ramchandra Mandlik (since deceased by his LRs) and another v. Smt. Shantabai Ramchandra Ghatget and others, AIR 1989 SC 2240.
12. Plaintiff asserts that originally the suit land belonged to ex-intermediary of Kanika. His father was inducted as a tenant on 6.9.1945. Hat patta, Ext.1, was granted by ex-intermediary. But then, in Ext.1, no khata number and plot number has been mentioned therein. The signature of the person, who issued Ext.1 7 does not appear. Thus no reliance can be placed upon the same. Rent receipts, Ext.2 and 2/a, had been issued in the year 1943 i.e. prior to two years of issuance of alleged Hat patta, Ext.1. In OJC No.2922 of 1989, Ext.H/1, the plaintiff averred that his father Banambar was in possession of the suit land since 1954. It demolishes the plaintiff's case that the father of the plaintiff was inducted as a tenant in the suit land by the ex-intermediary on 6.9.1945. His father had not paid any rent to the Government. After abolition of the estate, the ex-intermediary had not submitted ekpadia in favour of the father of the plaintiff. No tenant ledger was opened. The father of the plaintiff was not a tenant under the ex- intermediary.
13. The next question crops up as to whether the plaintiff can institute the suit for declaration of title on the basis of adverse possession ?
14. An identical question came up for consideration before this Court in the case of Nabin Chandra Mohanta (since dead) through L.Rs. v. State of Orissa and others, (RSA No.396 of 2004 disposed of on 22.02.2019). Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669, this Court held :
"10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court granting relief of injunction. The first appeal against that part of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of adverse possession was denied holding that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Court. The Apex Court held:8
"8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
(emphasis laid)
11........In no uncertain terms, the Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The same is ratio decidendi. The High Court is bound under Article 141 of the Constitution of India.....
xxx xxx xxx
14. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199, a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. But then, in view of the decision of the Apex Court in the case of Gurdwara Sahib (supra), the plaintiff cannot maintain the suit for declaration of title by way of adverse possession." (emphasis laid)
15. In Life Insurance Corporation of India v. M/s. India Automobiles and Co. and others, AIR 1991 SC 884, the apex Court held that the decision rendered by the Rent Controller, Court of limited jurisdiction, in a proceeding under the Rent Control Court under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 9 will not operate as res judicata in a subsequent civil suit pertaining to title.
16. In Pandurang Ramchandra Mandlik, the apex Court held that the order passed in a summary proceeding under the Bombay Tenancy and Agricultural Lands Act shall not operate as res judicata. It was held that if the proceeding is not summary in nature, not falling within the definition of a suit, it may not be so treated for the purpose of Sec.11 CPC.
17. In view of the authoritative pronouncement of the apex Court in the case of Life Insurance Company of India and Pandurang Ramchandra Mandlik, order dated 25.9.1993 passed by the Estate Officer, Bhubaneswar in OPP Case No.68 of 1990 shall not operate as res judicata.
18. According to the plaintiff, the Kissam of the suit land is Gochar. Thus it is too late in the day to contend that there is no material to indicate that the suit land has been set apart for communal use. The plaintiff asserts that his father was a tenant under the ex-intermediary. After vesting of the estate in the State, he became a deemed tenant under Sec.8(1) of the OEA Act. Simultaneously, a plea has been taken that he has perfected title by way of adverse possession. The plea is mutually inconsistent. The substantial questions of law are answered accordingly.
19. The logical sequitur of the analysis made in the preceding paragraphs is that the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 15th March, 2019/PKS