Orissa High Court
State Of Orissa vs Prafulla Kumar Pradhan .Dead. Through ... on 28 March, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.119 of 1990
From the judgment and decree dated 15.11.1989 and 22.11.1989
respectively passed by Sri A.C. Pattnaik, learned Subordinate, Deogarh in
Title Appeal No.7 of 1987 reversing the judgment and decree dated
31.3.1987and 12.8.1987 respectively passed by Sri S.K. Mohapatra, learned Munsif, Deogarh in T.S. No.31 of 1985.
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State of Orissa .... Appellant
Versus
Prafulla Kumar Pradhan (dead)
through L.Rs. .... Respondents
For Appellant ... Mr. R.P. Mohapatra, AGA
For Respondents ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 19.03.2018 : Date of judgment: 28.03.2018
Dr. A.K.Rath, J This is a defendant's appeal against reversing judgment.
2. An area of Ac.20.03 dec. of land appertaining to Sabik Khata No.20 which corresponds to Major Settlement Khata No.59 of Village-Baidharnagar, District-Deogarh is the subject-matter of dispute.
3. Prafulla Kumar Pradhan, predecessor-in-interest of the respondents, as plaintiff instituted the suit for a declaration that the entry in the major settlement ROR is illegal and erroneous. Case of 2 the plaintiff was that the suit schedule land was recorded in the name of Purusotam Mahakul alias Pradhan during 1925-26 settlement of ex-State Bamra. The legal heirs of the recorded tenant alienated the land in favour of the plaintiff. When there was a cloud of suspicion over his title, he instituted T.S. No.2 of 1972 in the Court of the learned Munsif, Deogarh against the defendant for declaration of title, recovery of possession and mesne profits. The suit was decreed. Title Appeal No.45/15/12 of 1974-77 filed by the defendant in the Court of the learned District Judge, Sumbalpur was dismissed. In Execution Case No.16 of 1975, possession was delivered to him through process of Court. Since then the plaintiff was in possession of the suit land. He used to pay rent. But then, in the major settlement, the suit land has been recorded as "Abada Jyogya Anabadi" in the name of Raj Sarkar. The entry is illegal. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
4. Defendant entered contest and filed a written statement denying the assertions made in the plaint. Case of the defendant was that the suit land was Gounti-rayati land. The same was governed by Revenue Rules, ex-State, Bamra prior to enactment of the Orissa Merged Territories (Village Offices Abolition) Act (10 of 1963) (hereinafter referred to as "the Act"). The lands were not private properties of the village officer at any point of time. The administration of all village offices in ex-State, Bamra was run by the village officers, namely, Gountias. The Gountias held intermediary interest by virtue of their office over the lands assessed to the land revenue with the village boundary in between the ex-ruler on one hand and the actual cultivator on the other. Gountias were the servants of the ex-State, Bamra. Purusottam was appointed as Gountia of several villages including Village-Baidharnagar during the 3 Mc. Ferson survey settlement, 1927-28. All the abandoned assessed lands included in one holding were recorded as Gounti-rayati in the name of the village officer Purusottam. He was responsible for payment of land revenue assessed for the land. He had the option under the Bamra Revenue Rules, 1929 either to cultivate the land himself or through subjects and realize the land revenue. The interest of Purusottam was the incident of his village office. Such interest always ran with the village office. Purusottam resigned in 1930. The village office was not heritable. The descendants of Gountias who held the village office could not claim it by dint of his heirship. To hold the village office was always followed by appointment through heirs or preferred to, if he had satisfied the qualification for appointment. One Nanda Munda was appointed as the Gountia of village in between 1930-1937. He was in possession of the land during his tenure of Gountiship. Kutartha Pradhan son of Purusottam was appointed as Gountia of the village by the ex-State of Bamara in the year 1937 till 1955. He was removed from service in 1955, since he failed to discharge the duties and responsibilities of the village officer. After removal, he lost all his service benefits which included the right to possess or lease out the suit holdings. Since none applied for appointment of Gountia of the village, the Government used to run the village office by a Patwari, a Government servant in addition to his other normal duties assigned to him. The lands under the suit holding were leased out to the residents of the village for realisation of land revenue by the Patwari. Kutartha ceased to be the Gountia of the village from 1955. He lost all his rights. The alienation was made in the year 1968. The legal heirs or recorded tenant were not in possession of the land. Purusottam was not a tenant. Anyone who could possess Gounti-rayati lands must be either a Gountia or a consentee under the Gountia or the State. Save 4 and except such person, all others are deemed in law to be the trespassers. Thus the transfer of a trespasser is invalid and inoperative in law. Purusottam was not the owner nor in possession of the land after removal from service. No settlement was made in favour of Kutartha. Thus transferee cannot claim any title over the land. It was further pleaded that the Act was not brought to the notice of the Court. The Civil Court has no jurisdiction to entertain the suit in respect of Gounti-raiyati land. The jurisdiction of the civil Court has been impliedly barred by the Act. The decree passed by the Court having no jurisdiction will not operate as res judicata. The decree is not enforceable in law. The entry made in the settlement ROR is legal and valid. The Civil Court has no jurisdiction to entertain the present suit.
5. Stemming on the pleadings of the parties, learned trial Court struck as many as seven issues. Parties led evidence, oral and documentary to substantiate their case. Placing reliance on the Full Bench decision of this Court in the case of Paramananda Pradhan and another v. Palau Sahu and others, AIR 1984 Orissa 57, learned trial Court came to hold that Gounti-raiyati lands are incidental to the village office. Alienation of Gounti-raiyati land is possible in the event there is a settlement under the Act and the right, title and interest over such land had been decided in conformity with the provision of the said Act. The Civil Court has no jurisdiction to entertain the previous suit. Judgment will not operate as res judicata. The same is not binding on the defendant. It further held that the person in possession of Gounti-raiyati land, which was not settled with him, is an encroacher under the executive instruction. Even if the vendor was in possession of the suit land, he was an encroacher. He had no title over the same. The plaintiff stepped into the shoes of the encroacher. Plaintiff is not an occupancy tenant. The 5 Civil Court has no jurisdiction to decide the right of Gounti-raiyati land in dispute. The Civil Court has no jurisdiction to entertain the suit in the present form. Held so, it dismissed the suit. Feeling aggrieved, plaintiff filed Title Appeal No.7 of 1987 before the learned Subordinate Judge, Deogarh. Learned Appellate Court allowed the appeal holding, inter alia, that the plaintiff is an occupancy tenant of the suit land. The decree passed in T.S. No.2 of 1972 is binding on the defendant. The principle enunciated in Paramananda Pradhan (supra) is of no help to the defendant. The decree passed in the earlier suit is binding upon the defendant. The plaintiff has title over the suit land. He was in possession of the same. The entry in the ROR is illegal. It is apt to state here that during pendency of the appeal, plaintiff-respondent no.1 died whereafter his legal heirs have been substituted.
6. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.2, 3 and 4 of the appeal memo. The same are -
"2. For that the learned lower appellate Court has completely lost sight of the settled proposition of law that the moment the Bhogra lands vested with the State under the provisions of Section 3(f) the person in possession ceases to have any right to possess the suit land. Further as a result of the vesting the right, title and interest of the ex-Gountia is extinguished and as such, the plaintiff acquired no right, title or interest by virtue of his purchase from the ex-Gountia and in view of the further fact that the Civil Court had absolutely no jurisdiction to decide such a dispute the judgment passed in the earlier suit are non est in the eye of law as has been observed by the learned trial Court.
3. For that the learned lower appellate Court has committed a gross error of law in not agreeing with the findings of the learned trial Court to the effect that the present suit which has been filed in the year 1985 for correction of the recording made in the R.O.R. of the major settlement is grossly barred by time.6
4. For that the period of limitation for correction of R.O.Rs. being three years, the learned lower appellate Court has acted illegally in not dismissing the suit which was filed in the year 1985 for correction of the entries made in the major settlement of R.O.R."
7. Heard Mr. R.P. Mohapatra, learned Addl. Government Advocate for the appellant. None appeared for the respondent.
8. Mr. Mohapatra, learned AGA submitted that the suit schedule lands were the Gounti-rayati lands, which is distinct from Rayati or Bhogra. The suit land was recorded as Gounti-rayati lands in Mc. Ferson survey settlement, 1927-28. Gounti-rayati lands situated within ex-State Bamra was not a private property of the Gountia. The land was not settled in favour of Purusotam. Purusotam was appointed as a Gountia of the village. The interest in the land was coterminous of the village office. The village office was not heritable. Purusottam resigned in 1930. Thereafter, one Nanda Munda was appointed as the Gountia of village in between 1930- 1937. Kutartha Pradhan son of Purusottam was appointed as Gountia of the village by the ex-State of Bamara in 1937. He was Gountia till 1955. Kutartha was removed from service in 1955. He had no right to alienate Gounti-rayati lands. Earlier suit instituted by the plaintiff was decreed placing reliance on the decision of the Division Bench of this Court in the case of State of Orissa represented by the Deputy Commissioner, Northern Division v. Prafulla Kumar Pradhan, ILR 1980 (I) Cuttack 547. The said decision was overruled by a Full Bench of this Court in the case of Paramananda Pradhan (supra). Since the law has been altered, the earlier decision will not operate as res judicata. He placed reliance on the decisions in the case of Mathura Prasad Bajoo Jaiswal and others v. Dossibai N.B. Jeejeebhoy, 1970 (I) SCC 613 and Satyendra Kumar and others v. Raj Nath Dubey and others, (2016) 14 SCC 49, State of 7 Orissa represented by the Deputy Commissioner, Northern Division v. Prafulla Kumar Pradhan, ILR 1980 (I) Cuttack 547 and Paramananda Pradhan and another v. Palau Sahu and others, AIR 1984 Orissa 57.
9. Before delving deep into the matter, it is apt to refer to the decisions cited by learned AGA. In Prafulla Kumar Pradhan (supra), the case pertains to Gounti-raiyati lands in the ex-State of Bamra. The question arose before a Division Bench of this Court as to whether Gounti-raiyati lands are transferable ? The Court held that the incidence of the tenancy of Gounti-raiyati land is the same as that of the raiyati land and that such lands are the raiyati lands of the Gountia and would continue to remain his property even after he ceases to hold that office.
10. In Paramananda Pradhan (supra), the question arose before a Full Bench of this Court as to whether Gounti-raiyati lands in the former State of Bamra are the personal property of the Gountia or he ceases to have the right to hold the same on abolition of the village offices. The further question arose as to whether the Civil Court has jurisdiction to entertain the suit for partition of the Gounti-raiyati lands, which have been settled under Sec. 6 of the Act. On an in-depth analysis of the Revenue Laws prevailing in ex-State Bamra and the Act, the Full Bench held that the Gountia used to possess the vacant holdings of the raiyats and to remain in charge of those holdings until they were settled with other raiyats. He was in possession of those lands by virtue of or as incidental to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gountia. After abolition of the village offices, the Gountia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3(g) of the Act. Gounti-raiyati lands in the ex- State of Bamra were not the personal property of the Gountia. It was 8 further held that the Gounti-raiyati lands in the ex-State of Bamra were not the personal property of Gountia, but he was in charge of those lands by virtue of or as incidental to his office and according to the provisions of Sec. 3(g) of the Act, he ceases to have the right to hold those lands. It was further held that the Civil Court has no jurisdiction to entertain a suit for partition of the Gounti-raiyati lands.
11. In Paramananda Pradhan (supra), the Full Bench distinguished earlier Full Bench decision of this Court in the case of Gajaraj Sahu v. State of Orissa, AIR 1971 Orissa 1 wherein it was held that Gounti-raiyati means raiyati lands held by the Gountia during his tenure of office and that Gounti-raiyati lands are, therefore, raiyati lands. The lands involved in that case were the Gounti-raiyati lands of the district of Sambalpur governed by the Central Provinces Land Revenue Act and the question for consideration was whether such lands were raiyati lands and were freely transferable. It was held that the decision must, therefore, be read in the light of the facts of that case and is no authority on the question whether the Gounti-raiyati lands of the former State of Bamra governed by the provisions of Act 10 of 1963 are the personal property of the Gountia. The Full Bench overruled the Division Bench decision in the case of Prafulla Kumar Pradhan (supra).
12. Placing reliance on the Division Bench of this Court in the case of Prafulla Kumar Pradhan, the earlier suit was decreed.
13. The seminal point that hinges for consideration as to whether earlier decision will operate as res judicata between the same parties, where the law was altered.
14. Section 11 of the Code of Civil Procedure, which enacts the general rule of res judicata so far as it is relevant, provides;
9"11. Res-judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suits between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
15. In Mathura Prasad Bajoo Jaiswal (supra), the apex Court held :
"(I) The rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent Court.
(II) The doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby.
A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties : the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision : the 10 decision of law can not be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.
(III) Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.
(IV) In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judicata has no application. (V) A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.
(VI) A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
(VII) In determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e., the 11 interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression "the matter in issue" in Sec. 11 Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
16. In Satyendra Kumar and others v. Raj Nath Dubey and others (2016) 14 SCC 49, the apex Court held that when the cause of action as well as the subject-matter i.e the property in issue in the subsequent suit are entirely different, res judicata is not attracted and the competent Court is therefore not debarred from trying the subsequent suit which may arise between the same parties in respect of other properties and upon a different cause of action. In Satyendra Kumar (supra), the apex Court has relied on the decision in the case of Mathura Prasad Bajoo Jaiswal (supra).
17. Reverting to the facts of the case and keeping in view the enunciation of law laid down by the apex Court in the case of Mathura Prasad Bajoo Jaiswal (supra), this Court finds that earlier suit was decreed placing reliance on the Division Bench decision of this Court. The same was overruled by the Full Bench of this Court in the case of Paramananda Pradhan (supra) wherein it was held that the Civil Court has no jurisdiction to entertain the suit. The said judgment will not operate as judicata.
18. As held by a Full Bench in the case of Paramananda Pradhan (supra) Gounti-raiyati lands in the ex-State of Bamra were not the personal property of the Gountia, but he was in charge of those lands by virtue of or as incidental to his office and according to 12 the provisions of Section 3(g) of the Act he ceases to have the right to hold those lands. The alienation made by Purusotam in favour of the plaintiff is void. Thus no title passes to the plaintiff. The substantial questions of law are answered accordingly.
19. A priori, the impugned judgment is set aside. Consequently the suit is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 28th March, 2018/Pradeep