Orissa High Court
Krushna Chandra Biswal vs State Of Orissa And Others on 20 January, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.155 of 2005
From the judgment and decree dated 28.02.2005 and 09.03.2005
respectively passed by Shri N.P. Rout, learned Addl. District Judge,
F.T.C. No.II, Cuttack in T.A. No.115 of 2002 confirming the
judgment and decree dated 16.12.2002 and 20.12.2002
respectively passed by Shri R.K. Pattnaik, learned Civil Judge (Jr.
Divn.), Salipur in T.S. No.49 of 1994.
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Krushna Chandra Biswal ............... Appellant
---versus--
State of Orissa and others .................. Respondents
For Appellant : Mrs. Supriya Patra, Advocate
For Respondents : Mr. P.C. Panda, Addl. Govt. Advocate
(For Respondent Nos.1 and 2)
Mr. A.C. Mohapatra, Advocate
(For Respondent Nos.3 to 14)
J U D G M E N T
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 12.01.2017 │ Date of Judgment: 20.01.2017
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Dr. A.K. Rath, J.This is an appeal against the judgment and decree dated 28.02.2005 and 09.03.2005 respectively passed by learned Addl. District Judge, F.T.C. No.II, Cuttack in T.A. No.115 of 2002 dismissing the appeal and thereby confirming the judgment and decree dated 16.12.2002 and 20.12.2002 respectively passed by the learned Civil Judge (Jr. Divn.), Salipur in T.S. No.49 of 1994. 2
02. The appellant as plaintiff instituted the suit for declaration of right, title and interest over the suit schedule property and for a declaration that the Sairat Misc. Case No.1/91-92 initiated by the defendant no.2 is illegal and not binding on the plaintiff. The case of the plaintiff is that one Surendra Chandra Malla was the ex- intermediary of the estate. The ex-intermediary leased out the suit schedule land in favour of his father, executed hatapatta on 5.4.1943, accepted salami, fixed annual rent and inducted his father as a tenant. His father used to pay rent to the ex-intermediary and was cultivating possession of the same. After promulgation of Orissa Estate Abolition Act (hereinafter referred to as "the O.E.A. Act") the estate vested in the State. But then his tenancy right has no way been affected. His father became a deemed tenant under the State under Sec.8(1) of the O.E.A. Act. Since his father was ill, he could not take steps in the hal settlement operation as well as consolidation operation, as a result of which the suit land was recorded in the name of State of Orissa under Rakhita Khata. It is further stated that the Tahasildar, Salipur, defendant no.2, initiated Sairat Misc. Case No.1/91-92 against the plaintiff. Pursuant to issuance of notice, he appeared and filed objection. But then, the defendant no.2 passed an order on 18.4.1992 and directed to pay Rs.75/- towards cost of soil and imposed Rs.15/- for penalty for 3 excavation. Against the said order, he filed Revenue Misc. Appeal No.15 of 1992 before the Sub-Collector, Cuttack, which is subjudice. He is in possession of the land peacefully and continuously to the knowledge of the true owner for more than statutory period and as such perfected title by way of adverse possession.
03. Pursuant to issuance of summons, the defendant nos.1 and 2 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on the ground of non- service of notice under Sec.80 C.P.C. and Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "OCH & PFL Act, 1972"), the defendants stated that the ex-landlord Shri S.C. Malla had never executed any hatapatta on 5.4.1943 in favour of the father of the plaintiff and inducted him as a tenant for agriculture purpose. The alleged hatapatta was obtained to grab the Government property. The revenue record does not indicate the same. The plaintiff is not in possession of the suit land.
04. The villagers, who have impleaded as defendant nos.3 to 14, have also filed a written statement denying the assertions made in the plaint. The specific case of the defendant nos.3 to 14 is that Suresh Chandra Malla was not the Zamindar of the village. He was 4 not competent to lease out the suit land. The hatapatta is a forged one. The rent receipts are fabricated. No ekpadia was submitted by the ex-intermediary in favour of the father of the plaintiff. The possession of the plaintiff from the time of his father is not supported by any documentary evidence. He was in unauthorised occupation of the suit land. Encroachment Case No.1442/76 was initiated against him and fine was realized. Further the defendant no.2 initiated Sairat Misc. Case No.1/91-92 and had realized Rs.75/- towards cost of soil. It is further stated that the suit land has been reserved for the school. There is a M.E. School in the village, namely, Satyanarayan M.E. School. The school has no building of its own. The same is now functioning in the U.P. School campus. Steps have been taken to construct the school over the land in question.
05. Stemming on the pleadings of the parties, learned trial court struck fourteen issues. To substantiate the case, the plaintiff had examined four witnesses and on his behalf eight documents had been exhibited. On behalf of the defendant nos.1 and 2, one witness had been examined and one document had been exhibited. Defendant nos.3 to 14 had examined four witnesses.
06. The suit was dismissed. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court before 5 the learned Additional District Judge, F.T.C. No.II, Cuttack in T.A. No.115 of 2002, which was eventually dismissed.
07. The second appeal was admitted on the following substantial question of law.
"Whether an agricultural tenancy can be created through an un-registered lease deed (hatta patta) and acceptance of rent as well as salami by the ex-landlord ?"
08. Heard Mrs. Supriya Patra, learned counsel, on behalf of Mr. B.N. Bhuyan, learned counsel for the appellant, Mr. P.C. Panda, learned Additional Government Advocate for the respondent nos.1 and 2 and Mr. A.C. Mohapatra, learned counsel for the respondent nos.3 to 14.
09. Learned counsel for the appellant submitted that the ex- landlord had inducted the father of the plaintiff as a tenant in the year 1943. He had executed a hatapatta on 5.4.1943 in favour of his father. His father was in continuous possession of the suit land. After him, the plaintiff is in possession of the same. When the ex- intermediary estate vested in the State, the rights of the tenants are not affected. His father became a deemed tenant under the State under Sec.8(1) of the O.E.A. Act. Since the father of the plaintiff was ill, he could not take any steps in the settlement as well as consolidation operation for which the land was wrongly recorded in the name of the State of Orissa under Rakhita Khata. She further submitted that no formal document is necessary to create 6 agricultural tenancy. Further the plaintiff is in possession of the land peacefully, continuously and to the hostile animus of the true owner for more than the statutory period and has perfected title by way of adverse possession.
10. Per contra, learned Additional Government Advocate for the respondent nos.1 and 2 as well as the counsel for the respondent nos.3 to 14 supported the judgments. They contended that the alleged hatapatta is a fabricated one. The Ex-Zamindar has not inducted the father of the plaintiff as a tenant. The suit schedule land has been recorded in the name of the State of Orissa under Rakhita Khata in the hal settlement as well as consolidation record of right. The same have not been challenged by the plaintiff. There is no material on record that the plaintiff is in possession of the suit land for more than statutory period. Further the claim of the plaintiff has been negatived by both the courts.
11. In Jagannath Nanda vs. Bishnu Dalei and others, Vol.XL (1974) CLT 888, a Division Bench of this Court held that under the tenancy laws a formal document is not necessary to create an agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent whereafter he would acquire the status of a tenant. But then the aforesaid point does not arise for consideration in this appeal.
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12. The plaintiff claimed the suit land on the basis of hatapatta. Placing reliance on Ext.4, the certified copy of the Touzi No.5430, learned lower appellate court came to hold that one Chintamani Malla was the landlord in respect of suit land. The hatapatta issued by one S.C. Malla, son of Chintamani Malla. He was not authorized to induct the tenant. It further held that the hatapatta has not been proved. The plaintiff has not stacked claim before the settlement authority or consolidation authority.
13. It is admitted by the parties that the village in question came under the purview of consolidation operation. The consolidation authorities have been vested with the jurisdiction to decide the right, title and interest of the parties, since the jurisdiction of the civil court is an ousted. In the instant case, consolidation record of right has been issued in favour of the State of Orissa under Rakhita Khata. The same has not been challenged either before the Commissioner of Consolidation or before the civil court. It attained finality.
14. In State of Kerala vs. M.K. Kunhikannan Nambiar, AIR 1996 S.C. 906, the apex Court held that even a void order or decision rendered between parties cannot be said to be non- existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided 8 or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court went in depth into the jurisprudential concept of 'void' and 'voidable' and held thus :
"7. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus:-
"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."
In the Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus:-
"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:
(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent Jurisdiction."
Similarly, Wade and Forsyth in Administrative Law, Seventh edition- 1994, have stated the law thus at pages 341-342:-
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".......every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Racliffe said:
An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."
15. The alleged hatapatta said to have been executed by Ex- Zamindar has not been proved. There is no pleading with regard to the date the father of the plaintiff came into possession. There is also no material on record that the plaintiff is in possession of the suit land peacefully, continuously to the hostile animus of the owner for more than statutory period. The estate vested in the State. After vesting of the estate in the State the ex-intermediary had not submitted ekpadia in favour of the father of the plaintiff. The alleged hatapatta was not produced before the settlement or consolidation authorities. The plaintiff rose from deep slumber and filed the suit after a half century of the year of issuance of the alleged hatapatta to grab Government property.
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16. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court observed as under :-
"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." (emphasis laid)
17. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 20th January, 2017/Basanta