Orissa High Court
State Of Orissa And Others vs Sankarsan Singh Nina And Others on 18 September, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.314 of 1994
From a judgment and decree dated 16.10.1993 and 13.7.1994
respectively passed by Shri A.K.Samantray, learned Additional
Sub-Judge, Bolangir in Title Appeal No.4/20 of 1993 reversing the
judgment and decree dated 17.11.1992 and 3.12.1992 passed by
the learned Additional Civil Judge (Jr.Division), Hindol in T.S.No.54
of 1993.
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State of Orissa and others .... Appellants
Versus
Sankarsan Singh Nina and others.... Respondents
For Appellants -- Mr.R.P.Mohapatra, A.G.A.,
Ms.Samapika Mishra, A.S.C.
For Respondents-- Mr.N.K.Sahu, Advocate,
Mr.Bhagyadhar Swain
& Mr.Manoj Das, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 06.9.2017 & Date of Judgment:18.9.2017
Dr.A.K.RATH, J.This is an appeal filed by the defendants against the judgment and decree passed by the learned Additional Sub-Judge, Bolangir in Title Appeal No.4/20 of 1993, whereby and whereunder, the learned appellate court set aside the judgment and decree passed by the learned Additional Munsifi, Bolangir in Title Suit No.54 of 1983 and allowed the appeal.
22. The dispute pertains to a tank having an area Ac.17.62 dec. appertaining to plot no.830, khata no.96 of mouza Tepran in the district of Bolangir.
3. The respondents as plaintiffs instituted the suit for a direction to the defendants to issue Patta recognizing their rights over the suit tank, declaration of fishery rights and permanent injunction impleading the appellants as defendants. The case of the plaintiffs is that Jayakrushna Singh Nina was the common ancestor of the plaintiffs. He was the Maufidar of the village Tepren (Maufidar means a holder of rent-free land, grantee). Maufidari system was abolished in the year 1926. The ancestors of the plaintiffs were appointed as Thikadar of the village, which continued till abolition of the Thikadari system in the Ex-Patna State. The suit tank was excavated by Jayakrushna Singh Nina in the year 1902. He was in possession of the same. In the year 1936, all the tanks in Patna State were recorded as "Jalchar". There was discontentment amongst the private owners. It was decided by the then Ruler of Patna State to settle fishery rights of the tanks excavated by the private individuals, who were exercising rights including the right of fisheries. In the year 1941, the Government of Ex-State of Patna decided to acknowledge the fishery rights of the private individuals over the tanks. A general proclamation was issued on 15.1.1942 inviting objection from the persons, who were in possession over the tanks. Accordingly, Shiv Narayan Singh, grandfather of the plaintiffs preferred claim on 23.3.1942. After due enquiry, the Ex-Ruler of Patna State by order dated 24.4.1947 granted fishery rights to the claimants. The same was published in Patna Deepika dated 15.5.1947. Thus fishery 3 rights of the plaintiffs over the suit tank were recorded by the authorities. The State took over possession of the tanks. No objections were filed. While the matter stood thus, the Ex-State of Patna merged in the State of Orissa on 1.1.1948. The Government of Orissa had undertaken to respect all the works done by the Ex- Ruler of Patna State. Accordingly, the application filed by the plaintiffs on 23.3.1942 before the Superintendent, Land Records, Bolangir ('SLR' in short) was registered as Fishery Case No.106 of 1950. The SLR after enquiry received all the arrear rents from the plaintiffs though no specific date for issuance of Patta was given. The plaintiffs from the time of their ancestors are in continuous possession of the tank uninterruptedly. While the matter stood thus, the Tahasildar, Bolangir issued notice for auction of fishery rights of the suit tank in December, 1982. The Tahasildar, Tusra again issued notice in May 1993 for auction of the suit tank. Since the attempt made by the defendants to put the suit tank into auction will deprive the plaintiffs of their valuable right, they instituted the suit seeking reliefs mentioned supra.
4. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit tank was recorded in the Jalasinchan Khatian of the then Patna State. The ancestors of the plaintiffs were not the owners of the same. No order was passed by the competent authority recognizing the fishery rights of the plaintiffs. The suit tank belongs to the Government. Therefore, the question of issuance of patta in favour of the plaintiffs does not arise. The tank had been recorded in the name of the State in the year 1936 and 1976 settlement. The plaintiffs had neither raised any objection during 4 the said two settlements nor filed any appeal or revision before any competent authority. Various tenants use water of the tank for irrigation. The suit plots are Bhogra lands and belong to the State. In Bhogra conversion proceeding, the lands were recorded with various persons with right of irrigation only. Neither Thikadar, nor any raiyat had any fishery rights over the suit tank. After merger, the Government decided to transfer all water in favour of the respective Panchayats for management. The suit tank is being managed by the State through the Revenue Department, as it had not yet been transferred to the concerned Gram Panchayat. The SLR had no jurisdiction to pass any order recognizing the fishery rights of the plaintiffs. The ex-Ruler of Patna State had not granted any fishery rights to any individual. The plaintiffs or their ancestors had not claimed any such right during Bhogra Conversion Proceedings.
5. On the inter se pleadings of the parties, the learned trial court struck four issues. Both parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that neither the ancestor of the plaintiffs constructed the suit tank in the year 1902, nor the plaintiffs were in possession of the suit tank continuously till the date of filing of the suit. The fishery rights of the plaintiffs had not been recognized by the competent authority, since the SLR had no jurisdiction to recognize the rights of the plaintiffs. Held so, it dismissed the suit. Aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed appeal before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Additional Sub-Judge, Bolangir and renumbered as Title 5 Appeal No.4/20 of 1993. The learned appellate court held that the SLR had jurisdiction to decide the right of the plaintiffs. The plaintiffs cannot be denied right of fishery over the suit tank. From Exts. 11, 12, 13, 15 and 21, it is clear that the ex-Ruler of Patna State had recognized the fishery rights of the plaintiffs' ancestors over the suit tank and that right cannot be taken away by an entry in the record of right subsequent to the merger of the Patna State with the State of Orissa. After merger the State of Orissa have also recognized such a right. The Court cannot go into the validity of the order passed by the SLR in 1950. Held so, it set aside the judgment and decree passed by the learned trial court and allowed the appeal.
6. The Second Appeal was admitted on the following substantial questions of law enumerated in grounds no. F, G & H of the appeal memo. The same are:
"F. From that even if the entire documents exhibited on behalf of the plaintiffs are accepted, then also the fisher right of the plaintiffs are not established. Hence the plaintiffs having failed to adduce any cogent evidence, the findings arrived at by the learned trial court ought to have been upheld by the learned lower appellate court and the suit ought to have been dismissed on that ground alone.
G. For that admittedly neither the State Government nor the Ex-Ruler granted any patta in respect of the suit tank showing fishery rights in favour of the plaintiffs. In absence of any documents to indicate that the plaintiffs have filed objection claiming their fishery rights over the suit tank, the plaintiffs' suit ought to have been dismissed.6
H. For that the order of the SLR vide Exhibi-12 does not disclose any plot number or khata number of the suit tank, thus in absence of any cogent evidence, adduced by the plaintiffs, the suit ought to have been dismissed and the findings of the learned trial court ought to have been confirmed."
7. Heard Mr.R.P.Mohapatra, learned A.G.A. along with Ms.Samapika Mishra, learned A.S.C for the appellants and Mr.N. K. Sahu along with Mr.Bhagyadhar Swain and Mr.Manoj Das, learned Advocates for the respondents.
8. Mr.Mohapatra, learned A.G.A. submitted that from the remark column of the record of rights of the year 1918-1919, Ext.19, it is mentioned that Jayakrushna Singh Nina had spent an amount of Rs.500.00 for repair of the suit tank in the year 1902. Assertion of the plaintiffs that the tank was constructed in the year 1902 is not correct. Therefore, the suit tank was in existence prior to 1902. Ext.19 further reveals that the suit tank was constructed over Bhogra land. There is no mention of any khata or plot number in the order passed by SLR, vide Ext.12. Ext.12 does not relate to suit tank. The SLR passed an order to issue patta to the plaintiffs in Fishery Case No.106 of 1950 on being transferred by the A.D.M. The A.D.M. could have issued the order on behalf of the Collector. No document has been exhibited by the plaintiffs that the SLR has jurisdiction to pass order. Hence the order passed by the SLR under Ext.12 is void. The State is not bound by the same. The SLR vide its order dated 25.11.1951 passed an order to issue patta, but no patta had been issued to the plaintiffs. In view of the same, the learned appellate court committed a manifest illegality in placing reliance on the same. He relied on a Full Bench decision of this 7 Court in the case of Gopaleswar Dharua Vrs. State of Orissa and others, 41 (1975) CLT 387 and Division Bench of this Court in the case of Radhakrushna Pati Vrs. The State of Orissa and others, 39 (1973) CLT 476.
9. Per contra, Mr.Sahu, learned Advocate for the respondents submitted that the second appellate court normally will not interfere with the findings of fact given by the learned first appellate court based upon an appreciation of relevant evidence. The learned appellate court, on consideration of the documents and evidence available on record and pleadings, came to a conclusion that fishery rights of the plaintiffs over the suit land has been established and, as such, they are entitled for a declaration. The judgment does not suffer from any error in law by introducing a defect in procedure so as to require interference of this Court. He further submitted that the learned lower appellate court, on consideration of the vital documents exhibited by the plaintiffs, such as, Exts.11, 12, 13, 14, 15, 17 & 21 had come to a conclusion that the ex-Ruler of Patna State had recognized the fishery rights of the plaintiffs over the suit tank. In pre-independence era, there was no constitutional limitation upon the authority of the Ruler to act in any capacity, he liked. He was the supreme legislature, the supreme judiciary and the supreme head of the executive. All the orders of the ex-Ruler, however, would have the force to law and would govern and regulate the affairs of the State including the rights of the citizen. The ex-State having recognized the right of fishery of the plaintiffs over the suit tank, such right cannot be taken away after merger of the State. He further submitted that both the courts below concurrently held that on being transferred 8 by the A.D.M., the Fishery Case Record no.106 of 1950 under Ext.12 came before SLR for adjudication. Explanation appended to para-6 of the Administration of Orissa State Order-1948 clearly specifies the expression "Collector" and " Additional Collector" shall respectively mean the "Dist. Magistrate" and the "Addl.Dist. Magistrate" of the district constituted under the Code of Criminal Procedure, 1898 as applied to the Orissa States. In view of this, the power and function of the Collector and the Addl. Dist. Magistrate is same and equal in all respect within the meaning of para-6 (b) of the State Order. Therefore there is no jurisdictional error in the order passed by the SLR recognizing the right of the plaintiffs over the suit tank. The plaintiffs have paid all the arrear rents. He relied on the decisions of the apex Court in the case of Ananda Behera and another Vrs. State of Orissa and another, AIR 1956 SC 17, Deity Pattabhiramaswamy Vrs. S.Hanymayya and others, AIR 1959 SC 57, Sovachand Baid Vrs. The Commissioner of Income-tax, AIR 1959 SC 59, Madhaorao Phalke Vrs. State of Madhya Bharat (Now Madhya Pradesh and another, AIR 1961 SC 298, State of Bihar Vrs. Krispa Shankar Jaiswal, AIR 1961 SC 304, V. Ramachandra Ayyar and another Vrs. Ramalingam Chettiar and another, AIR 1963 SC 302 and Ameer-un-Nissa-Begum and others Vrs. Mahboob Begum and others, AIR 1955 SC 352.
10. In Deity Pattabhiramaswamy (supra), the apex Court held that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be.
911. In V. Ramachandra Ayyar (supra), the apex Court held that in hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is substantial error or defect in the procedure provided by the Code, or by any other Law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court.
12. In Madhaorao Phalke (supra), a question arose as to whether the orders issued by an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders ? The apex Court held that there was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens. But the same is not a case here. No order was passed by the ex-Ruler.
13. In the case of Gopaleswar Dharua (supra), the questions arose before the Full Bench of this Court for consideration as to
(i) What was the nature of right the Thekadar had in the Bhogra lands during the tenure of the settlement from 1.4.1936 till 31.3.1950 ?
10(ii) Has section 7(g) of the Act any application to Bhogra lands of the Thekadars in the ex-State of Bolangir ?
On an in-depth analysis of the law prevailing in the ex- State of Bolangir and referring to the provisions of the Patna State Revenue Act, 1940, this Court held that a Thekadar in the ex-State of Bolangir was not a tenant and was a mere tenure-holder. He had rights and obligations as mentioned in the Patta and the Kabuliyat during the currency of the settlement. He had no title in Bhogra lands. He had no right of alienation. There was no right of succession except during the currency of the settlement. He was liable to eviction on various grounds during the currency of the settlement. During the period for which the settlement was valid the Thekadar had a precarious right. At the close of the settlement he had no right. All that was prescribed was that until the next settlement he would continue to collect the land revenue and discharge the duties. The legal position that existed in the ex-State of Bolangir prior to the coming into force of the Act on 3.3.1950 was that the Thekadar had no right, title and interest in the Bhogra lands except that he was in possession thereof towards the remuneration for management of the village. The Bhogra lands attached to the Thekadari right are not the private properties of the Ruler. They belong to the State. Towards remuneration for the management of the village the Bhogra lands are given during the period of settlement to the Thekadar. It was further held that the petitioner in the said case cannot have any title in any Bhogra lands other than those which were settled with him on rayati basis. The Thekadars in the ex-State of Bolangir had a precarious right in the Bhogra lands. They were in enjoyment thereof during the 11 currency of the settlement having no right, title and interest therein and were evictable under certain conditions. After the expiry of the tenure they had no rights to continue in the lands.
14. The remark column of the R.O.R. published in the year 1918-19, Ext.19 shows that Jayakrushna Singh Nina had spent Rs.500/- for repairment of the suit tank. Thus, the suit tank was in existence prior to 1902. Ext.19 further reveals that the suit tank was constructed over Bhogra land. Though P.W.1, in his evidence, has stated that the same was constructed by their ancestor in the raiyati land, but no evidence was adduced to that effect. Ext.12 is the order passed by the SLR. The SLR passed the order on 25.11.1951 as follows:
"Issue patta and put up"
The same does not reveal any khata number or plot number. No patta had been issued to the ancestor of the plaintiffs. Fishery Case No.106 of 1950 was initiated on the application of the grandfather of the plaintiffs. The case had been transferred to the SLR by order of A.D.M.. The Ex-State of Bolangir merged with the State of Orissa on 1.1.1948 as would be evident from the case of Gopaleswar Dharua (supra). Thus, reliance placed on Ext.12 is totally misplaced. No importance can be attached to the order made by the SLR. As held in Gopaleswar Dharua (supra), Bhogra land belongs to the State. The Gountia had no right in them. The legal position that existed in the ex-State of Bolangir prior to the coming into force of the Act on 3.3.1950 was that the Thekadar had no right, title and interest in the Bhogra lands except that he was in possession thereof towards the remuneration for management of 12 the village. The Bhogra lands attached to the Thekadari right are not the private properties of the Ruler. They belong to the State. Towards remuneration for the management of the village the Bhogra lands are given during the period of settlement to the Thekadar.
15. In Ananda Behera (supra), the dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re-auction the rights. At this juncture, the petitioner had approached the apex Court under Article 32 of the Constitution of India on the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a 'profit a prendre' which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If 'profit a prendre' is regarded as tangible 13 immoveable property and the property value is more than Rs.100/- it requires registration under Section 54 of the Transfer of Property Act. Had the patta been granted in favour of the plaintiffs, the same could have required registration in view of Section 17(a) of the Registration Act. The substantial questions of law are answered accordingly.
16. The decision in the case of Ameer-un-Nissa Begum (supra) is distinguishable on facts.
17. In the wake of the aforesaid, the plaintiffs' suit must fail. The appeal is allowed, but in the circumstances of the case, the parties are to bear their own costs throughout.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 18th September, 2017/CRB 14