Orissa High Court
Satrughana Parida And Others vs Collector Cuttack And Others on 4 September, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.346 of 1989
From the judgment and decree dated 30.9.1989 and 27.10.1989
respectively passed by Shri B.C. Dev, learned Sub-Judge,
Kendrapara in T.A. No.2 of 1987 confirming the judgment and
decree dated 24.12.1986 and 17.1.1987 respectively passed by Sri
P.C. Pattanaik, learned Addl. Munsif, Kendrapara in T.S. No.193 of
1981.
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Satrughana Parida and others ................. Appellants
---versus--
Collector, Cuttack and others .................. Respondents
For Appellants : Mr. Ashutosh Mahanta, Advocate
For Respondents : Mr. Swyambhu Mishra,
Additional Standing Counsel
(For Respondent nos.1 and 2)
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :04.09.2017 │ Date of Judgment:04.09.2017
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Dr. A.K. Rath, J.This is a plaintiffs' appeal against an affirming judgment in a suit for permanent injunction.
2. The suit schedule land consists of Ac.21.50 dec. appertaining to khata no.63, plot no.460 of mouza-Bahakuda, P.S.- Mahakalapada, Dist.-Cuttack.
3. The case of the plaintiffs is that the suit schedule land was under Anabadi khata of Ex-Zamindar, Burdhawan Estate. It was lying fallow and water logged. About 40 years back, the plaintiffs 2 and their predecessors reclaimed the suit land, made it fit for cultivation, dug a tank for the purpose of irrigation and pisciculture and constructed a house over a portion of the same. They had planted various fruit bearing trees with the express and implied consent of the ex-landlord. They used to raise paddy crops over a major portion of the suit land. The coconut trees standing over the suit land are in their exclusive enjoyment. They are in possession of the land peacefully, continuously, without any interruption and to the knowledge of the defendants and as such acquired right of occupancy over the same. The ex-intermediary leased out the land in their favour on payment of salami and annual rent. They paid salami to the ex-landlord. On receipt of premium, he settled the lands in their favour. They were tenants under the ex-landlord. They continued to possess the suit land on payment of annual rent to the ex-landlord and obtained rent receipts. After vesting of estate, the ex-landlord submitted rent roll in their favour. Thereafter, they submitted applications before the Tahasildar, Kujanga to accept rent. But the same was not accepted. The specific case of the plaintiffs is that they are deemed tenants. The land had been illegally recorded in the name of the defendants. With this factual scenario, they instituted the suit seeking reliefs mentioned supra.
4. The defendant no.1 filed written statement denying the assertions made in the plaint. The defendant challenged the maintainability of the suit for non-service of notice under Sec.80 C.P.C. and non-identification of the suit land. The specific case of defendant no.1 is that the suit land is a Government land. The Soil Conservation Department had raised cashew plantation over the suit land. Thereafter, the same was transferred by the Tahasildar to the Orissa State Cashew Development Corporation in the year 1980. The later was in possession of the same.
35. On the interse pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral and documentary, to substantiate their respective cases. On a threadbare analysis of the evidence on record and pleadings, learned trial court came to hold that Kujanga estate vested in the State on 27.11.1952. The date of rent receipts, Ext.1, was originally 7.12.1952, but subsequently the date has been mentioned as 24.11.1952 in order to show that receipt had been granted before vesting. The plaintiffs had paid rent for the year 1953-54 after vesting. The intermediary had no right to accept any rent. The plaintiffs had failed to show that the rent was paid prior to vesting. They are not deemed tenants. It further held that the Soil Conservation Department had grown cashew plantation. Thereafter, the Orissa State Cashew Development Corporation, defendant no.4, is in possession of the land. Held so, it dismissed the suit. The plaintiffs appealed before the learned Subordinate Judge, Kendrapara which was eventually dismissed.
6. The second appeal was admitted on the following substantial question of law.
"Whether possession of the plaintiff is unlawful in view of the provisions of Orissa Estates Abolition Act ?"
7. Heard Mr. Ashutosh Mahanta, learned counsel for the appellants and Mr. Swyambhu Mishra, learned Additional Standing Counsel for the respondent nos.1 and 2.
8. Mr. Mahanta, learned counsel for the appellants submits that the land belonged to ex-landlord of Kujanga. About 40 years back, the plaintiffs and their predecessors reclaimed the land, made it fit for cultivation and planted trees. They also used to raise paddy crops over the same. They paid rent to the ex-intermediary. They 4 were tenants under the ex-landlord. After vesting of the estate, they are deemed tenants under Sec.8(1) of the Orissa Estates Abolition Act, 1951.
9. Per contra, Mr. Mishra, learned Additional Standing Counsel for the respondent nos.1 and 2 submits that the suit land originally belonged to ex-landlord. It vested in the State free from all encumbrances. The Soil Conservation Department planted cashew trees. Subsequently, the same was handed over to the Orissa State Cashew Development Corporation, defendant no.4. The defendant no.4 is in possession of the land. Both the courts concurrently held that the plaintiffs are not in possession.
10. The pleading is mutually destructive. The plaintiffs assert that they were in possession of the land peacefully, continuously, without any interruption and to the knowledge of the defendants and as such acquired right of occupancy over the same. It is further stated that after vesting of estate, they are in possession and as such they are deemed tenants under Sec.8(1) of the Orissa Estates Abolition Act. The plaintiffs further assert that they were in possession of the suit land for more than statutory period to the knowledge of the defendants and their predecessors, much prior to 1940 till now without any hindrance and as such acquired right in respect of the suit land.
11. The word 'raiyat' has been defined in Sec.5(2) of Orissa Tenancy Act. It means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest or persons who have acquired such a right. Sec.23(1) of the Act provides that every person who, for a period of twelve years whether wholly or 5 partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village. Sec.24(1) postulates that every person who is a settled raiyat of a village within the meaning of Sec.23 of the Act shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.
12. There is no pleading that the plaintiffs are settled raiyat of the village. Thus the assertion of the plaintiffs that they are occupancy raiyats has no legs to stand.
13. Not a single scrap of paper has been filed to show that the plaintiffs were tenants under the ex-intermediary and after vesting, they are in possession. No rent was paid to the ex- intermediary after vesting. Learned trial court on a threadbare analysis of evidence on record as well as pleading negatived the plea of the plaintiffs. In fact the plaintiffs are not sure of their right. Both the courts concurrently held that the plaintiffs are not in possession of the suit land. The title of the plaintiffs is cloud of suspicion.
14. In Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033, the apex Court held thus:
" xxx xxx xxx 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a 6 cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
15. Thus, the simply suit for permanent injunction without any declaratory relief is not maintainable.
16. The matter may be examined from another angle. The suit was instituted in the year 1981. The age of the plaintiff no.1 was 50 years, i.e., he was born in the year 1931. The age of the plaintiff no.2 was 40 years, i.e., he was born in the year 1941. The assertion of the plaintiffs is that about 40 years back of the institution of the suit, they were in possession of the suit land. If the same is believed, then the plaintiff no.1 was 10 years and the plaintiff no.2 was not born. The suit is thoroughly misconceived.
17. Resultantly, the 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 The 4th September, 2017/Basanta