Orissa High Court
Chaitan Das And Ors. vs Murali Dalai And Ors. on 23 December, 1969
Equivalent citations: AIR 1971 ORISSA 41
JUDGMENT R.N. Misra, J.
1. The defendants are in appeal against a confirming judgment of the learned Additional Subordinate Judge, Cuttack in a suit for declaration of tenancy right, recovery of possession and mesne profits both past and future.
2. The plaintiffs came to court with the case that the suit lands which are locally known as Maneipat, a waterlogged area are in an Anabadi Khata of the ex-State of Sukinda. It is said that the plaintiffs dug a channel some time in 1938 and after the water was drained out some lands became fit for cultivation and they have been in possession of the said lands. The Sukinda estate was under the management of Court of Wards by then and they applied to the Court for lease and the manager of the Wards Estate recommended it to the Collector of Cuttack. The Additional District Magistrate considered the recommendation of the manager and directed the plaintiffs to deposit the salami. The plaintiffs deposited the salami on 8-8-51 and received delivery of possession of the property. But before a formal patta could be issued, the management of the estate by the Court of Wards terminated and soon thereafter the ex-estate of Sukinda came to vest in the State of Orissa under the Orissa Act I of 1952. The plaintiffs were in possession and were raising crops on the suit lands year after year. The defendants disturbed their possession and it led to the initiation of a proceeding under Section 145, Cr. P. C. wherein the possession of the defendants was upheld. The plaintiffs therefore brought the suit.
3. The defendants contended that they had approached the ex-intermediary (Zamindar of Sukinda) about 18 years before the suit and with his consent had reclaimed the land. They have been in possession and have acquired occupancy status.
4. The learned trial Judge came to find that the suit was not hit under Section 39 of Orissa Act I of 1952; plaintiffs had reclaimed the land and were in possession until attachment was effected in the criminal proceeding and the plaintiffs have also acquired the tenancy right as alleged.
5. The lower appellate court affirmed the findings of the learned trial Judge and dismissed the defendant's appeal.
6. Mr. Mohanty, learned counsel for the defendants raises three contentions : (1) The plaintiffs are bound to fail as they have not acquired any tenancy right. The provisions of Section 61 of the Orissa Tenancy Act, according to Mr. Mohanty's submission, cannot be applied to the facts of the case; (2) There was only an offer to gramt the lease by the Court of Wards and there has yet been no lease. In the circumstances, the plaintiffs are not entitled to avail the benefit of Section 53A of the Transfer of Property Act in support of their case and (3) he also contends that there are certain errors of record in the judgment of the lower appellate court and the same is therefore vitiated. It is submitted by Mr. Mohanty that there is no allegation that the plaintiffs were the settled ryots of the village and in view of the fact that they were landless people and there was no evidence of reclamation it was not open to the courts below to proceed on the basis that they must be taken to have made the reclamation and became entitled to the benefit of Section 61 of the Orissa Tenancy Act.
7. In paragraph 1 of the plaint it was stated :
"The plaintiffs are fishermen by caste and they are settled royats of the village. As they had no cultivable lands they wanted to take lease of the disputed lands which appertained to the Anabadi khata of the landlord."
In paragraph 5 it was further asserted:
"That as the plaintiffs already acquired good and indefeasible royati title to the disputed land by reclaiming the Anabadi lands and making them fit for cultivation and were growing crops for more than 4 years therein, the plaintiffs with a view to make their title safe and secure applied for a formal settlement of the lands with them to the Court of Wards which was in management of the estate at the time."
These assertions of the plaintiffs do not seem to have been specifically denied in the written statement. As it appears, the assertion in paragraph 1 of the plaint as extracted above has nowhere been repelled in the written statement. With reference to paragraph 5 of the plaint, the following was stated :
"That the plaintiffs already acquired good and indefeasible title to the disputed land by reclaiming the Anabadi lands and making them fit for cultivation and growing crops for four years after reclamation as alleged in paragraph 5 of the plaint, is maliciously false and a mistake of real facts............".
Mr. Rath, learned counsel for the plaintiffs, therefore, contends that as there was no denial of the assertion made in paragraph 1 of the plaint, it must be held that the parties did not raise issue about the status of the plaintiffs and on the principle "what is not denied need not be proved" the courts below were not called upon to decide the status of the plaintiffs. I have examined the written statement at length and I do not find there is any other denial of the plaintiff's assertion. In the circumstances I would hold agreeing with Mr. Rath's contention that the status of the plaintiffs as being that of settled royats of the village is to be accepted.
8. The next question for examination is as to whether the plaintiffs had really reclaimed the land and have been in possession after reclamation. It is an admitted event in the litigation that the entire estate of Sukinda was under the management of the Court of Wards at the relevant time. Ext. 1 is the recommendation of the Manager of the Court of Wards. Therein it is stated :
"Sri Gopal Dalei and 17 others of Atta have also prayed for taking lease of the above Pat lands on royati basis. They are fishermen by caste and profession. They have got no lands which are being utilised for homestead purposes. They use to catch fish from the above Pat land and earn their living. They have dug out a channel to drain out the water from the Pat land at a huge cost in shape of their labour for facility of catching fish as a result of which some portions of the said area has dried up and become fit for growing crops thereon. So they have applied for settlement of the lands in question with them for the purposes of cultivation and fishing etc. ......... So I would suggest that out of the above lands now available for settlement as stated above, an extent of Ac. 10.00 may be settled with the above fishermen concerned on payment of Rs. 20/- as salami per acre in view of their above claim and the rest may be settled with the highest bidders as stated above if thought necessary."
Ext. 2 is a note to the Additional District Magistrate wherein the following is stated :
"The entire block of Ac. 19.36 may therefore be leased to these fishermen at the usual salami of Rs. 20/- per acre although the Manager suggests that 10 acres may be settled with them at that rate .........".
By an order dated 19-7-51, the Additional District Magistrate accepted the aforesaid recommendation. As it appears. Ac. 19.36 seem to have been covered by 3 plots being plot No. 163, 192 of holding No. 165 and plot No. 1781 of holding No. 390. The total area was Ac. 21.90 decimals. But Ac. 2.40 decimals had already been leased out, out of plot No. 1781 to one G.S. Singhdeo and 14 decimals more had been set apart for the purpose of a channel after deducting Ac. 2.54 decimals out of the total area of Ac. 21.90 decimals, the balance was found out to be Ac. 19.36 decimals. The suit property as described in Schedule A is thus Ac. 19-36 decimals. The plaintiffs have produced Ext. 4 which is a receipt granted by the Court of Wards for a sum of Rs. 388/-. Therein it is specifically stated that it is on account of salami for Ac. 19.36 decimals at the rate of Rs. 20/- per acre.
9. On the side of the defendants certain rent receipts have been produced which have been marked as Ext. A series and Ext. C series. In Ext. A series there is no indication as to whether it relates to the suit lands. The courts below have not relied upon these documents giving various reasons including the one that it is quite possible that these receipts related to the Ac. 2.40 decimals which had been leased out to another person out of plot No. 1781.
10. Mr. Mohanty contends that adverse inference should be drawn against the plaintiffs for their failure to produce any rent or 'kuta' receipts to support their possession for all these years and he asserts that the fact that receipts have been produced on the side of the defendants goes to show that they must have been in possession and not the plaintiffs. The plaintiffs contended that they had been in possession until the proceedings under Section 145, Cr. P. C. had been initiated. No rent had ever been collected from them, and as such they have not been in a position to obtain any rent receipts. Both the courts below have taken these aspects into account and have ultimately come to find for the plaintiffs. The oral evidence in the case has been taken into account and the learned Appellate Judge in paragraph 4 of his judgment after discussion of the oral evidence has accepted the same to be supporting the plaintiff's claim.
11. These findings of the lower appellate court must be taken to be on questions of fact and in second appeal I cannot interfere with such findings.
12. The only question of law that is raised by Mr. Mohanty is that it is well settled that the provisions of Section 53A of the Transfer of Property Act can be used as a shield and not as a sword. Therefore the plaintiffs cannot come to court to establish title on the basis of the Court of Wards records agreeing to lease out the land to the plaintiffs on the payment of salami to the Court of Wards. He contends that the two decisions which have been relied upon in the courts below being AIR 1950 SC 1 (Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons) and AIR 1954 SC 165 (Kalyanpur Lime Works Ltd. v. State of Bihar) are both suits for specific performance. The courts below have lost sight of this fact and have imported the principle enunciated in those two decisions to the facts of the present case which is not one for enforcement of a contract. Mr. Rath, however, seeks to rely upon a decision in the case of Akram Mea v. Secunderabad Municipal Corporation, AIR 1957 Andh Pra 859. Subba Rao C. J. (as he then was) analysed the true position of Section 53A of the Transfer of Property Act and stated thus:--
"Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the Section or the rights conferred thereunder should not be made to depend on the manoeuvering for positions in a Court of law; otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a court as plaintiff.
Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as shield."
The aforesaid position seems to have stated law very properly in my view and can be fully applied to the present case. I would, therefore, hold that the plaintiffs are entitled to lay their claim in the suit on the basis of their arrangement made with the ex-proprietor of the Sukinda Estate while that estate was under the management of the Court of Wards.
13. The apparent errors of record which were pointed out by Mr. Mohanty to have vitiated the judgment of the lower appellate court were examined also at length and I do not find any of them is a serious error of record or that the judgment has at all been vitiated on account of such mistakes. As Mr. Mohanty alleged that there were certain errors of record I referred to the original documents and I have proceeded to dispose of the case on the basis of the original documents which have been exhibited in this case. On the aforesaid analysis I would hold that the courts below were right when they gave a decree to the plaintiffs in the suit. After analysis there is no substance left which can be utilised against the plaintiffs and in favour of the appellants.
14. In the circumstances I would conclude that the second appeal has no merit and is liable to be dismissed. I would, therefore, dismiss the second appeal, but I would give a direction that the respondents should not be paid any costs of this appeal.