Orissa High Court
Ganesh Shankar Shukla .Since Dead. ... vs State Of Orissa And Another on 23 October, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.47 of 2006
From the judgment and decree dated 4.10.2005 and 4.11.2005 respectively
passed by Sri A.K. Das, learned Civil Judge (Senior Division), Padampur in
RFA No.1 of 2003 confirming the judgment and decree dated 27.4.2002
and 8.5.2002 respectively passed by Sri P.K. Das, learned Addl. Civil Judge
(Junior Division), Sohella in T.S. No.46/97 of 2000.
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Ganesh Shankar Shukla (since dead) through L.Rs. .... Appellants Versus State of Orissa & another .... Respondents For Appellants ... Mr. Buddhiram Das, Adv.
For Respondents ... Mr. R.P Mohapatra, AGA
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 09.10.2017 : Date of judgment: 23.10.2017
Dr. A.K.Rath, J This appeal is directed against the judgment and decree dated 4.10.2005 and 4.11.2005 respectively passed by the learned Civil Judge (Senior Division), Padampur in RFA No.1 of 2003 confirming the judgment and decree dated 27.4.2002 and 8.5.2002 respectively passed by the learned Addl. Civil Judge (Junior Division), Sohella in T.S. No.46/97 of 2000.
2. Plaintiff-appellant instituted the suit for declaration of right, title and interest, restoration of possession and permanent injunction. Case of the plaintiff is that Schedule-A land was recorded as Gochar in Hamid Settlement. Lambardar Gountia of the village was entitled to cultivate or lease out the land to the raiyats for 2 cultivation or appoint new raiyats as per the provision of Wazib-ul- urz. Baisnaba Charan Naik was the Lambardar Gountia of village Sohella. Gajendra Naik and others were co-sharers. All the co- sharers with the consent of Lambardar Gountia reclaimed the suit lands and other lands and made it fit for cultivation. They were in possession of the suit lands. They surrendered the suit lands along with other lands to Lambardar Gountia on 14.3.1933. Thereafter, Lambardar Gountia granted patta to Rambhorose Shukla, father of the plaintiff, on 30.4.1933 on receipt of nazarana, inducted him into possession and realized annual rent. His father was in possession of the suit land and used to pay annual rent regularly. The land was mutated in his favour. After his death, the plaintiff remained in possession of the land and otherwise perfected title by way of adverse possession. In M.S R.O.R, the suit land had been recorded in the name of the plaintiff. The Tahasildar initiated Encroachment Case No.40 of 1999 against the plaintiff, which is sub judice. While the matter stood thus, on 15.3.1996 defendant no.2 unauthorisedly excavated the canal over a portion of the suit land to which the plaintiff protested. Thereafter, he instituted the suit seeking reliefs mentioned supra.
3. Defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. The specific case of the defendant no.1 is that the suit land was under Rakhit khata. The kissam of the land is Gochar. Gochar land could not be settled by the Gountia. The entry in the M.S. ROR neither creates nor extinguishes title. The land is in possession of the Government. The suit land was lying fallow. Defendant no.2 applied for allotment of Ac.1.80 dec. of Government land for Kendumundi Project before the Tahasildar on 21.8.1996. After sanction, canal was excavated.
34. Defendant no.2 has filed a written statement denying the assertions made in the plaint and took the similar stand. Case of the defendant no.2 is that the suit land belongs to Government. It was lying fallow. The kissam of the land is Gochar and recorded under Rakhit khata. At the time of construction of canal, no objection was received. The plaintiff has no right, title and interest or possession over the suit land. It is apt to state here that during pendency of the appeal, the sole plaintiff died, whereafter his legal heirs have been substituted.
5. On the inter se pleadings of the parties, learned trial court framed as many as seven issues. Both parties led evidence, oral as well as documentary, to substantiate their case. On a threadbare analysis of the evidence as well as pleadings, learned trial court came to hold that the kissam of the land is Gochar and the same has been recorded in the name of the Government in the M.S ROR published in the year 1972. The plaintiff is a practicing lawyer. He did not take any step for correction of ROR. The plaintiff had not proved that he had perfected title by way of adverse possession. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Padampur in RFA No.1 of 2003, which was eventually dismissed.
6. The second appeal was admitted on the following substantial questions of law;
"1. Whether Lambordar Gauntia was empowered under Wazib-ul-urj which had the force of law to lease out the suit land to the father of the plaintiff in the year 1933 and whether plaintiff's father had acquired occupancy raiyati right over the suit land in view of Ext.I, II, III, IV and V ?
2. Whether non-filing of appeal or revision against the M.S. ROR debars the plaintiff to claim his title over the suit land?
3. Whether the suit land is Government land and whether the provision of OPLE Act is at all applicable to the suit 4 land which was leased out to the father of the plaintiff in the year 1933 ?
7. Heard Mr. Buddhiram Das, learned counsel for the appellants and Mr. R.P. Mohapatra, learned AGA for the respondents.
8. Mr. Das, learned counsel for the appellants, submitted that Gajendra Nayak and others, who were the co-sharers, surrendered the land in favour of Baishnab Charan Nayak, Lambardar Gountia on 14.3.1933. Lambardar Gountia executed a lease deed in favour of the father of the plaintiff on 30.4.1933. The land was mutated in favour of the vendee. The father of the plaintiff was in possession of the land. After him, the plaintiff was in possession of the land. He used to pay rent. He further contended that Lambardar Gountia had the authority to lease out the Gochar land in view of Wazib-ul-urz. The findings of the courts below that Lambardar Gountia had no authority to lease out the Gochar land is not correct. In Hamid Settlement, the suit plot was recorded as Gochar, but not Rakhit Gochar. In the Wazib-ul-urz, it was specifically mentioned that Lambodar and his co-sharers may cultivate or allow tenants to possess or appoint new raiyats in respect of Patita land. All Patita land not fit for cultivation became Government land. But the suit land was cultivable. Lambardar Gountia had leased out some plots in favour of different persons, whereafter ROR was issued in their favour. In the M.S. ROR, the name of the father of the plaintiff has been mentioned in the remarks column as forcible possession. His alternative submission is that the plaintiff had otherwise perfected title by way of adverse possession since he is in possession over the suit property for more than thirty years openly, peacefully and with hostile animus to the defendant. He further contended that the Orissa Prevention of Land 5 Encroachment Act ("OPLE Act") was not enacted, when the land was leased out in favour of the father of the plaintiff. The OPLE Act had no retrospective effect. He relied on the decision of this Court in the case of State of Orissa and another v. Mst. Pama Mali & others, 1978 (1) CWR 209.
9. Per contra Mr. Mohapatra, learned counsel for the respondents, submitted that the suit land is Patita. The same was recorded in Hamid Settlement. Lambardar Gountia had no authority to lease out the suit land as it was a Government land. Defendant no.2 applied for allotment of suit land for Kendumundi Project to the Tahasildar, Sohella on 21.8.1996. After sanction, the canal was excavated. Neither the plaintiff, nor his father was in possession over the suit land. Learned trial court came to hold that the plaintiff is not the owner of the suit land. He was not in possession of the same for more than thirty years uninterruptedly. He had not acquired title by way of adverse possession. The suit land belonged to Government. Its Kissam is Gochar. Defendant no.2 had already constructed the canal in the year 1997. In the absence of any illegality and perversity in the findings of the court below, this Court should not interfere with the same. He further contended that the so-called lease deed executed by Lambardar Gountia was unregistered lease deed. The same was required to be registered under Sec. 17 of the Indian Registration Act. Thus the father of the plaintiff could not derive any title. Hamid Settlement ROR was published in the year 1933 in the name of Baishnab Charan Naik, who was a Mulgujari of village Sohella. Referring to Sec. 2(h) of the O.E.A Act, he submitted that Mulgujari is also an intermediary. After abolition of Malgujari system in the year 1960, neither the plaintiff nor the father of the plaintiff was in possession of the land. He relied on the decision of this Court in the 6 case of Mst. Padma Keotuni and others v. Kumari Sarada Kumari Dora and others, 1972 (1) CWR 813.
10. Wajib-ul-arz recognizes a right of a cultivator in certain circumstances to the house site which may include right of transfer in the central province. So far as non-agriculturists are concerned, alienable right of property may also be conferred upon a cultivator of labour class by an agreement made with the lambardar and the punches. Admittedly the kissam of the land is Gochar. There is no evidence on record that the father of the plaintiff was an agriculturist. Clause-1 of Wajib-ul-arz, Ext.8, provides that all Patita lands which are not used for the purpose of agriculture shall be the property of the Government. The land mentioned in Wajib-ul-arz is recorded as gochar and forest. No person shall possess the same in the absence of a written permission from the Deputy Commissioner. Clause-2 provides that the villagers shall graze their cattle over Rakhit land and can collect fire wood and wood for their use and construction of house. Clause-3 provides Lambodar and co-sharers can cultivate the Patita land or lease out the same to the raiyat or induct the tenant. No fee can be collected for possession of the land. On a bare reading of Clause-4 of Wajib-ul-arz, it is evident that Lambodar had no authority to lease out the Gochar land. Reliance placed on the lease deed vide Ext.2 is totally misplaced. Since Lambodar had no authority to lease out the Gochar land, any deed executed by him can not confer any title. After promulgation of the O.E.A Act, 1951, all communal lands and porambokes vested in the State under Sec. 5(a) of the O.E.A Act free from all encumbrances.
11. In Mst. Pama Mali (supra), the scope of Sec. 42 of the Orissa Survey & Settlement Act, 1958 was the subject-matter of consideration Thus the decision is distinguishable on facts.
712. Adverse possession is not a pure question of law, but a blended one of fact and law. Both the courts below, on a threadbare analysis of the evidence as well as pleadings, negatived the plea of adverse possession. There is no perversity or illegality in the judgments of the courts below. The substantial questions of law are answered accordingly.
13. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 23rd October, 2017/Pradeep