Orissa High Court
Chandra Sekhar Sahoo And Ors. vs Chandrasekhar Das And Ors. on 21 June, 2000
Equivalent citations: 2000(II)OLR128
Author: P.K. Misra
Bench: P.K. Misra, P.K. Tripathy
JUDGMENT P.K. Misra, J 1. Defendants 1 and 3 to 5 are the appellants against the decision of a learned Single Judge of this Court. 2. Plaintiff-respondents 1 and 2 had filed the suit for declaration of right and for confirmation of possession and permanent injunction. The disputed property has been described in the plaint in Schedule-A "B" Schedule is a part of Schedule-Ac. Lot No. 1 of Schedule-A consists of two plots - Plot No. 2023 with area of Ac. 4.64 decimals and Plot No. 2023/4525 with area of A. 1.12 decimals - both plots being in Khata No. 15. Lot No. 2 of Schedule-A consists of plot No. 2023/4567 with area of Ac. 0.38 decimals in Khata No. 326. Schedule-B has been described as Ac. 3.84 decimals out of Ac. 4.64 decimals in Plot No. 2023. It is not disputed that the property described in Lot No. 1 of Schedule-A was the Bramhottar Niskar land and in Lot No. 2 was Pahi land which originally belonged to one Nijakantha Sadasya. 3. The plaintiffs' case is as follows : On the death of Nilakantha, "A" Schedule property devolved upon his three sons Hari, Baraju and Madhu. Madhu was given away in adoption and "A" Schedule property devolved upon Hari and Baraju. Hari had adopted one Natabar and Baraju had adopted Lokanath and "A" Schedule properties were recorded in the names of Natabar and Lokanath in the year 1909. Natabar died issueless in the year 1941 and Lokanath died in the year 1946 leaving behind his widow Mahani and three daughters Maguni, Ratnamani (plaintiff No. 2) and Swarnalata. Plaintiff No. 1 is the husband of plaintiff No. 2. Lot No. 1 in Schedule-A was mutated in the names of Lokanath and Champa, the widow of Madhu in Mutation Case No. 822 of 1945-46 and Lot No. 2 of Schedule-A was similarly mutated in their names in Mutation Case No. 823/1945-46. Champa died leaving behind two daughters Buli and Subarria. Plaintiff No. 1 purchased Ac. 3.84 decimals as described in Schedule-B from Mohani Dibya, widow of Lokanath, and got the same mutated in his name in Mutation Case No. 245 of 1960-61. After vesting of Bramhottar Niskar land, the aforesaid land was settled in the name of plaintiff No. 1 on the basis of his application under Sections. 6 and 7 of the Orissa Estates Abolition Act. The balance land of Ac. 1.92 decimals was settled in the name of plaintiff No. 2 in Vesting Case No. 56 of 1996-67. Applications filed by defendants in respect of Lot No. 1 of Schedule-A had been rejected by the O.E.A, Collector. Out of Ac. 0.38 decimals in Lot No. 2, Ac. 0.26 decimals was mutated in favour of plaintiff No. 2 and Maguni, her sister, in Mutation Case No. 244 of 1960-61 and balance Ac. 0.12 decimals of land devolved upon plaintiff No. 2 after death of Lokanath. Thus, the plaintiffs are in peaceful possession of the entire "A" Schedule lands. Father of defendants 2 and 3 was Sikimi tenant in respect of Lot No. 1 of Schedule-A, but the Sikimi tenants were evicted from the land by the Raja and ruling chief of Baramba in Misc. Case No. 816 of 1949-50 as they defaulted in payment of rent. Proceeding under Section 145, Code of Criminal Procedure, started by defendants had been dismissed, but subsequently, defendants created trouble in the possession of the plaintiffs and proceedings under Section 145, Cr.P.C. bearing Misc. Case Nos. 86 and 87 of 1970 were initiated. However, possession of defendants was illegally declared thus, forcing the plaintiff's to file the present suit. 4. Defendants 1, 3, 4 and 5 filed a joint written statement. Defendant No. 2 filed a separate written statement. Defendants 1, 3. 4 and 5 in their joint written statement claimed that the plaintiffs had filed Title Suit No. 21 of 1962 for recovery of possession and the said suit having been dismissed, the present suit is barred by principles of res judicata. The alleged adoption of Madhu was denied. According to their case, Lot No. 1 was recorded in the names of Champa (widow of Madhu), Lokanath and Natabar in the year 1924-25 each having one-third share in the property. In Mutation Case No. 822 of 1945-46, Lot No. 1 of Schedule-A was recorded in the name of Champa having one-third share and Lokanath having two-third share and similarly Lot No. 2 was recorded in the names of Champa and Lokanath in Mutation Case No. 823 of 1945-46. In respect of Lot No. 1 Correction Slip No. 393 was issued indicating that Champa had Ac. 1.92 decimals and Lokanath had Ac. 3.84 decimals, and Correction Slip No. 394 was issued in respect of Lot No. 2 indicating that Champa had Ac. 0.12 decimals and Lokanath had Ac. 0.26 decimals. In Mutation Case Nos. 783 and 780 of 1945-46 and corresponding Correction Slip Nos. 395 and 396, Ac. 0.96 decimals of land each from out of Ac. 1.92 decimals recorded in the name of Champa was mutated in the name of Fakira (son of Subarna and grandson of Champa) and Buli (daughter of Champa) and separate Plot Nos. 2023/1 and 2023/2 were given and the balance portion of Lot No. 1 was corrected in the name of Mohani Dibya, widow of Lokanath, as per Mutation Case No. 526 of 1947-48 and Correction Slip No. 436. Balance portion of plot No. 2023 with area of Ac. 2.72 decimals was thus recorded in the name of Mohani Dibya and similarly plot No. 2023/4525 with area of Ac. 1.12 decimals was recorded in her name. It was further stated that though plaintiff No. 1 had purchased land from Mohani, neither he, nor his vendor was in possession of the land and the Patta in the Vesting Case had been obtained illegally. The validity of settlement in favour of plaintiff No. 2 in respect of Ac. 1.92 decimals was challenged on similar ground. As Lokanath Mohapatra had left behind three daughters, the property could not have been recorded in the name of plaintiff No. 2 and all the three daughters should have been recorded. Buli sold Ac. 0.96 decimals by separate sale deeds in favour of defendants 1, 4, 5 and father of defendant No. 3. Similarly, Fakira sold Ac. 0.96 decimals of land in favour of defendant No. 1 and father of defendant No. 3 by separate sale deeds. While denying other allegations in the plaint, it was claimed that Mahadeb, Keshab and Dama, the predecessors-in-interest of defendants were the recorded Sikimi tenants in Sikimi Khata No. 402 corresponding to Khata No. 15 and Mahadeb was the Sikimi tenant in respect of Sikimi Khata No. 411 in respect of Khata No. 326. The allegation regarding eviction of Sikimi tenants in Misc. Case No. 816 of 1 939-40 was denied and it was claimed that such order, if any, was illegal as Sikimi tenants had acquired the status of occupancy. It was further contended that such order, if any, had not been acted upon and the tenants had not been evicted. In the alternative, it was claimed that defendants 1, 3, 4 and 5 had perfected their title by adverse possession and their possession had been rightly upheld in the proceeding under Section 145, Cr.P.C. Defendants 1,4,5 and father of defendant No. 3 had also purchased the right of the Malik-royats in respect of Ac. 2.30 decimals of land in plot No. 2023. On the aforesaid pleas, the defendants sought for dismissal of the suit. 5. Defendant No. 2 in her short and separate written statement claimed that her father Mahadeb Naik was the Sikimi tenant and defendant No.2 was the sole heir of Mahadeb and her possession had been declared in a proceeding under Section 145, Cr.P.C. and Sikimi tenancy being heritable, defendant No. 2 had acquired right and as such the suit should be dismissed. 6. The trial Court dismissed the suit on the following findings : (a) Madhu had not been given away in adoption; (b) The order of the ex-ruler in Misc. Case No. 816 of 1939-40 (Ext.4) was merely declaratory in nature and no decree was passed pursuant to such order, nor executed and the plaintiffs failed to prove that the recorded Sikimi tenants had been evicted; (c) Plaintiff No. 1 did not derive any title under the sale deed as the alienation had been made without prior permission of the State. Moreover, transfer of Ac. 3.84 decimals is invalid as Mohani had got only Ac. 2.73 decimals out of plot No. 2023; (d) The abolition of intermediary interest in 1964 did not affect the right of the recorded Sikimi tenants as Sikimi tenants in the ex-State of Baramba had occupancy right over the land and Section 39 of the Orissa Estates Abolition Act is not a bar in entertaining the suit; (e) The order of the Estate Abolition Collector settling the land with the plaintiffs was without jurisdiction as notice had not been issued to the Sikimi tenants, and as such the application filed was barred by limitation; (f) Defendants had perfected their title by adverse possession and plaintiffs were not in possession; (g) The dismissal of Title Suit No. 21 of 1962 for default did not operate as res judicata in the subsequent suit; (h) Defendants who are successors of recorded Sikimi tenants have acquired royati right and other defendants who are not the legal heirs of recorded Sikimi tenants have acquired title by adverse prossession. 7. In first appeal, learned Single Judge reversed the decree mainly on the findings that the Sikimi tenants had been evicted from the disputed land; plaintiffs had title as the land had been settled with them under the O.E.A. Act and the plaintiffs were in possession and defendants were not in possession and as such there was no question of any adverse possession; the sale deed in favour of plaintiff No.l was found to be valid as question of not taking permission had not been raised; the order passed by the O.E.A. Collector could not be characterised as invalid, as no such specific plea had been taken, nor any evidence had been adduced that due procedure had not been followed. 8. There is no dispute that Sikimi tenants in ex-State of Baramba had occupancy right in the land. The learned counsel for the appellants has contended that there is no material on record to indicate that the order under Ext. 1 related to the disputed land and, at any rate, the said order being merely declaratory in nature, in the absence of any other materials on record, it could not have been assumed that the Sikinti tenants had been evicted. It is further contended that the defendants continued in possession and their possession had been admitted by the plaintiffs in the earlier suit and subsequently rent had been realised from them by initiating certificate proceedings and as such, it must be taken that they continued as Sikimi tenants and their tenancy right was not affected by the vesting. 9. From Ext. 1, the order of the ex-ruler, it appears that the ruler had passed an order that the tenants had ceased to be Sikimi tenants as they had failed to pay rent/sanja. It is, of course, true that there is nothing in the said order to show intrinsically that the said order related to the disputed plot. However, it had been specifically pleaded by the plaintiffs that the order has been passed in respect of the disputed land in Lot No. 1. In the written statement, the defendants had not taken a specific plea that the order of the ruler did not relate to the disputed land. They had simply taken the plea that the order was illegal. Even in evidence, nothing has been shown that the order did not relate to Lot No. 1. It is not the case of the defendants that their predecessors-in-interest were also Sikimi tenants in respect of other lands under the very same landlord and the order related to such other lands. It does not appear that such a contention had been raised either before the trial Court or before the first appellate Court. As such, the contention of the appellants cannot be accepted. 10. The learned counsel for the appellants further contended that the order appears to be merely declaratory in nature and there is no material on record to indicate that, in fact, the Sikimi tenants had been evicted. Whether the tenants had actually been evicted or not is immaterial in view of the endorsement of the ruler that they had ceased to be sikimi tenants. Even assuming that they continued in possession, such possession cannot be considered to be that of a Sikimi tenant. In view of the order, it must be taken that their status as Sikimi tenants came to an end. 11. The learned counsel for the appellants has contended that the finding of the learned Single Judge that defendants were not in possession and subsequently they got possession by virtue of the order under Section 145, Cr.P.C, is incorrect as the learned Single Judge has not considered the effect of several documents and oral evidence indicating about the possession of the defendants. It is, of course, true that the learned Single Judge has not referred specifically to the various documentary evidence on record and the oral evidence adduced on behalf of the defendants indicating their possession even prior to 1970. More particularly, the learned Single Judge has completely ignored the effect of admission of plaintiff No. 1 in the earlier suit. A perusal of the plaint filed by the present plaintiff No. 1 in the earlier suit of the year 1962 clearly indicates that defendants were in possession as trespassers. A perusal of the earlier plaint also indicates that one-third interest in the property had been recorded in the name of Champa and her heirs. It further indicates that the defendants had purchased from the heirs of Champa. Whether the defendants had got possession by virtue of sale deed or were trespassers, fact remains that their possession was admitted and as such, it must be taken that defendants were in possession in the year 1962. However, there cannot be any inference that the defendants or their predecessors-in-interest continued as Sikimi tenants, because their such status came to an end by virtue of the order passed by the ruler. As rightly observed by the learned Single Judge, the rulers in ex-States combined in themselves the jurisdiction of legislature, executive as well as judiciary and orders passed by them were considered to be supreme. It is not the case of the defendants that the order of the ruler was subsequently changed. Defendants have merely pleaded that the order was illegal. However, they have failed to indicate as to why the order shall be considered to be illegal. Thus, even though defendants were in possession, they had ceased to be Sikimi tenants. It may be that they were in possession by virtue of the sale deeds in respect of portions of land. At this stage, the effect of admission of Mahadeb in mutation case filed by plaintiff No. 1 is to be considered. In the said mutation case, Mahadeb stated that he was not a Bhag-Chasi in respect of some of the lands, but was a Chasi. As observed by the learned Single Judge, such admission indicates that Mahadeb had ceased to be a Sikimi tenant. 12. Once it is found that the defendants or their predecessors-in-interest had ceased to be Sikimi tenants, the effect of vesting and subsequent settlement is to be seen. Had the defendants or their predecessors-in-interest continued as Sikimi tenants, having occupancy right, the question would have been different. 13. It was found by the trial Court that the settlement in favour of the plaintiffs was illegal, as the Sikimi tenants had not been noticed. The provisions contained in the O.E.A. Act do not contemplate issuance of any individual notice to particular party, but only general proclamation is to be issued. The order-sheet available on record indicates that the Collector had directed for issuance of general notice. Keeping in view the ratio of the Full Bench decision of this Court reported in 50 (1980) CLT 393 (FB) : (Krupasindhu Misra (and after hint) Biranchi Prasan Misra and another) it can be said that a presumption is available to be raised that the official act had been done in accordance with the procedure. The defendants have not specifically challenged regarding non-issuance of notice in accordance with the provisions contained in the O.E.A. Act. They had merely pleaded that the order of settlement had been obtained fraudulently. In the absence of any specific plea or denial and specific evidence, it cannot be assumed that the procedure contemplated had not been followed. Thus, the observation of the trial Court that the orders of settlement were illegal had been rightly negatived by the learned Single Judge. 14. Even in spite of the aforesaid finding, the claim of the defendants cannot be totally ignored in the peculiar facts and circumstances of the present case. The learned counsel for the appellants has rightly contended that plaintiff No. 1 had purchased only a portion of the disputed property and the defendants have also purchased portions of the disputed property. It is apparent that the defendants have purchased the one-third share of Champa representing the branch of Madhu, that is to say, Ac. 1.92 decimals. As per the orders relating to mutation, out of Ac. 4.64 decimals appertaining to plot No. 2023, Ac. 1.92 decimals had been mutated (Ac. 0.96 decimals each) in the names of heirs of Champa which has been subsequently purchased by the defendants. Though plaintiff No. 1 claims that he had purchased Ac. 3.84 decimals from.Plot No. 2023. a closer scrutiny of documentary evidence negatives such a plea, as only Ac. 2.72 decimals from Plot No. 2023 was recorded in the name of the vendor of plaintiff No. 1. On the other hand, plaintiff No. 1 seems to have purchased Ac. 3.84 decimals. It is evident that balance Ac. 1.12 decimals appertained to plot No. 2023/4525, but there was a mistake in the sale deed. At any rate, the order of mutation reflects such position. Plaintiff No. 1 and defendants having purchased from different co-sharers, it must be taken that they became co-sharers after their purchase.. Even though separate applications had been filed on behalf of defendants for settlement, the O.E.A.Collector rejected the same on the ground that the land had already become royati land obviously because, the application of plaintiffs had been accepted. In normal course, the Estate Abolition Collector should have considered all the applications together. In the peculiar facts and circumstances of the case, it can be taken that the settlement in favour of plaintiffs shall enure to the benefit of all other co-sharers. Since the defendants must be taken to be the co-sharers. Since the defendants must be taken to be the co-sharers by virtue of their sale deeds from heirs of Champa, they should not be deprived of the benefit of settlement on a mere technical plea that their application had been formally rejected, particulary when the application was rejected merely on the ground that the land had become royati in nature. In such view of the matter, the decision of the learned Single Judge is required to be modified. It must be taken that defendants have got title and shall be entitled to retain their possession in respect of the lands purchased by them from Champa or plaintiff No. 1 under the various sale deeds and the plaintiffs' title would be declared in respect of the balance portion of the land. If necessary, such portions should be demarcated by deputing an Amin-Commissioner. 15. The learned counsel for the appellants has contended that once it is found that the plaintiffs were not in possession, the suit for declaration without prayer for recovery of possession was not maintainable. Though prima facie, such contention may appear to be attractive, it cannot be accepted in the facts and circumstances of the present case. It is not disputed that the plaintiffs had prayed for declaration of their title and for setting aside the order under Section 145, Cr.P.C. and for confirmation of possession and they have paid ad valorem court-fee. The prayer for confirmation of possession must be taken to be a prayer for recovery of possession, if it is found that plaintiffs are not in possession, as same court-fee had been paid. The Courts are required to mould the relief keeping in view the facts and circumstances of the case and merely because there is no specific prayer for recovery of possession, Court would not be helpless to direct for recovery of possession where the facts and circumstances of a particular case so warrant. 16. In the result, the appeal is allowed in part. The decree of the learned Single Judge is modified. It is directed that plaintiffs shall be entitled to recover possession of Ac. 2.72 decimals of land appertaining to plot No. 2023 and Ac. 1.12 decimals of land appertaining to plot No. 2023/4525 and defendants 1, 3, 4 and 5 shall be entitled to retain possession of the balance portion of the land as per their respective sale deeds. Parties are directed to bear their own costs throughout. P.K. Tripaty, J.
17. I agree.