Orissa High Court
Dharmananda Sahu (Dead) vs State Of Orissa & Others on 29 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 136, 2019 AIR CC 3392 (ORI), 2019 (203) AIC (SOC) 2 (ORI), (2019) 2 CLR 833 (ORI)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.70 of 2004
From the judgment and decree dated 23.12.2002 and 15.01.2003
respectively passed by Sri M.N. Patanaik, learned District Judge, Khurda
at Bhubaneswar in T.A No.21 of 2001 confirming the judgment and decree
dated 26.7.2001 and 9.8.2001 respectively passed by Sri K.C. Barik,
learned Civil Judge (Junior Division), Bhubaneswar in Title Suit
No.343/118 of 2000/1986.
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Dharmananda Sahu (dead)
through L.Rs. .... Appellants
Versus
State of Orissa & others .... Respondents
For Appellants ... Mr. Ramakanta Mohanty, Sr. Adv.
Mrs. Sumitra Mohanty, Adv.
For Respondents ... Mr. Swayambhu Mishra, ASC
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of hearing: 18.07.2019 : Date of judgment: 29.07.2019 Dr. A.K.Rath, J Plaintiffs are the appellants against a confirming judgment in a suit for declaration of occupancy right over the suit land.
2. Case of the plaintiffs was that Dinabandhu Sahu, original plaintiff no.1, and Gouri Behera were the joint occupancy raiyats in respect of the suit schedule property. Gouri met civil death. Thereafter, Dinabandhu became the exclusive owner in possession of the suit property. In the year 1925, the suit property was wrongly recorded in the name of the Forest Department. The same was 2 cancelled subsequently. Dinabandhu remained in possession of the suit property till death; whereafter his sons are in possession of the same. In 1962 settlement, the suit land was recorded in the name of the State Government-defendant no.1. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant no.1 filed a written statement denying the assertions made in the plaint. Case of the defendant no.1 was that neither the plaintiffs nor their predecessor-in-interest were in possession of the suit land. In the year 1916, the entire suit land was transferred to Mutation Khata No.1 (Government) in Block No.36. But inadvertently the area mutated in the Government Khata was wrongly reflected. The balance area was again recorded in the Government Khata No.1 by order dated 7.1.1929 of the Collector of the District. After transfer of the entire area to the Government Khata in the year 1916, it was recorded in favour of the Government in 1929-30 settlement. In 1962 settlement, the plot merged with new khata no.388 of the Forest Department forming a big new plot measuring Ac.41.650 dec. with classification "Chhota Jungle". Defendant no.1 is in possession of the suit land since 1916.
4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that Dinabandu and Gouri were not the occupancy raiyats in respect of the suit land. The plaintiffs and their predecessor-in-interest were not in possession of the suit land. The suit is barred by limitation as the original plaintiffs have not taken any steps to record the land in their favour after 1962. The suit is bad for non-joinder of the legal heirs of Gouri. Unsuccessful plaintiffs filed Title Appeal No.21 of 2001, which was eventually dismissed. It is apt to state here that during pendency of 3 the suit, plaintiff no.1 died, whereafter his legal heirs have been substituted.
5. The second appeal was admitted on the substantial questions of law. The same are -
"1. Whether the courts below were correct in dismissing the plaintiff-appellants' suit on the ground of limitation when the said suit was for declaration of occupancy right and not for correction of ROR as envisaged under Section 42 of the Orissa Survey and Settlement Act ?
2. Whether the courts below were correct in dismissing the plaintiff-appellants' suit on the ground of non-joinder of legal heirs of Gouri Behera when no specific plea of non- joinder of any particular party and the consequential prejudice, if any, have not been either pleaded or proved in this case ?
3. Whether the courts below were correct in dismissing the plaintiff-appellants' suit with a finding that the suit property is a forest land within the meaning of Section 2(C) of the Orissa Survey and Settlement Act, solely on the basis of the ROR which in law neither creates right nor extinguishes the same, without going into any semblance of enquiry/adjudication about the existence of forest from the materials on record ?
4. Whether plaintiffs are the occupancy raiyats over the suit land and institute the suit for declaration ?"
6. Heard Mr.Ramakanta Mohanty, learned Senior Advocate along with Mrs. Sumitra Mohanty, learned counsel for the appellants and Mr. Swayambhu Mishra, learned Addl. Standing Counsel for the State.
7. Mr. Mohanty, learned Senior Advocate for the appellants submitted that the ancestors of the plaintiffs were the occupancy raiyats. The plaintiffs plea was negatived on the ground that their ancestors had been recorded as tenants in 1913 ROR, Ext.1, but there is no recording of their occupancy status. In the plaint, it is stated that their ancestors were joint tenants and settled raiyats of the village. They were occupancy raiyats of the suit property prior to enactment of the Orissa Tenancy Act. Their occupancy right was not 4 terminated in accordance with law. The State cannot take advantage of wrong recording in the ROR. There is no specific denial in the written statement with regard to occupancy status of the plaintiff. The issue of occupancy right was neither raised nor any issue was framed in this regard. On the contrary the courts below proceeded to decide the issue as to whether the plaintiffs succeeded to the rights of the raiyats and whether such a right was validly determined. Therefore, occupancy right was not in dispute. He further submitted that under Sec.4 of the Orissa Land Reforms Act ('OLR Act') the persons holding lands immediately before commencement of the OLR Act with rights of occupancy within the meaning of any law for the time being in force shall be deemed to be a raiyat. The law which was prevalent in the year 1936 was the Orissa Tenancy Act. Section 23 of the Orissa Tenancy Act provides that a person who for a period of twelve years has continuously held as a raiyat whether under a lease or otherwise shall be deemed to have become a settled raiyat of that village. Section 24 provides that such a settled raiyat shall have a right of occupancy. From the averments made in the plaint, it is vividly clear that the plaintiffs' ancestors were the occupancy raiyats, which was not terminated. The instant suit is not for correction of ROR. The courts below fell into patent error in holding that the suit is barred by limitation. Defendants have not taken a plea of non- joinder of necessary parties. Learned lower appellate court came to the conclusion that the suit land is a communal forest solely basing on the ROR, Ext.1. The forest land has to be notified by the Government. Thus the finding is perverse.
8. Per contra, Mr. Mishra, learned ASC submitted that there is no pleading as to how the plaintiffs became the occupancy raiyats of the suit property. Plaintiffs have pleaded that they are paying rent 5 to the ex-landlord and thereafter to the State. But then, no rent receipt has been exhibited. The name of ex-landlord has not been revealed. Plaintiffs placed reliance on Ext.1, certified copy of 1913 ROR. But then, in the remarks column of Ext.1 it is stated that the suit land has been transferred to the Government as back as 1916. Both the courts concurrently held that the plaintiffs were not in possession of the suit land. P.W.1-plaintiff in his cross-examination had stated that the suit land was not bounded. Thus the very foundation of the claim of the plaintiffs that they are the occupancy raiyats collapses. P.W.2 has admitted in his cross-examination that the suit land is a busy jungle. He further submitted that mere possession or hostile possession against the true owner cannot bestow the relief of a declaration of being an occupancy raiyat over the suit land. He placed reliance on the decision of this Court in the case of Champa Bati Bewa @ Kabi v. Kanhu Mallik, 33 (1991) OJD
154.
9. Before adverting to the contentions raised by the learned counsel for both the parties, it will necessary to set out some of the provisions of the Orissa Tenancy Act, 1913.
"22. Continuance of existing occupancy-rights - Every raiyat who immediately before the commencement of this Act has, by the operation of any enactment, by custom or otherwise, a right of occupancy in any land, shall, when this Act comes into force, have a right of occupancy in that land.
xxx xxx xxx
23. Definition of 'Settled raiyat' - (1) Every person who, for a period of twelve years whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village.6
xxx xxx xxx
24. Settled raiyats to have occupancy right - (1) Every person who is a settled raiyat of a village within the meaning of Section 23 shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.
(2) Every person who, being a settled raiyat of a village within the meaning of Section 23 held land as a raiyat in that village at any time between the tenth day of September, 1891 and the commencement of this Act, shall be deemed to have acquired a right of occupancy in that land under the law then in force; but nothing in the sub-section shall effect any decree or order passed by a Court before the commencement of this Act."
10. In Champa Bati Bewa, this Court held that occupancy right cannot be acquired by adverse possession. In the absence of pleading the claim of acquisition of occupancy right cannot be adjudicated.
11. The suit land situates in Nayapalli, Bhubaneswar. Heavy reliance has been placed on ROR, Ext.1, by the plaintiffs to show that their ancestors were the occupancy raiyats.
12. Mere recitation of words 'occupancy right' is not suffice to hold that the plaintiffs ancestors were occupancy raiyats. The pleadings lack details. Pleading does not reveal that the predecessor- in-interest of the plaintiffs held the land for the purpose of cultivating it by themselves or by any members of the family or by hired servants, or with the aid of partners. There is also no pleading that their predecessor-in-interest held the land as a raiyat for a period of twelve years whether wholly or partly before or after the commencement of the Orissa Tenancy Act. Though it is stated that the rent was paid to the ex-landlord and thereafter to the State Government, but then the name of the ex-landlord has not been mentioned in the plaint. No rent receipt has been exhibited. Learned appellate court held that the evidence of P.W.2 fortifies the pleading 7 of defendant no.1 that the suit land is a communal forest which has been transferred to the Forest Department in the year 1966. The plaintiff and their predecessor-in-interest were not in possession of the land. There is no pleading as to how Dinabandhu and Gouri acquired the suit land. Ext.1 reveals that the entire land has been transferred to the Forest Department. In the subsequent ROR, the land has been recorded in the name of the Government and shown as "Chhota Jungle". There is no perversity in the said finding.
13. It is too late in the day to contend that the issue of occupancy right had neither been raised, nor any issue was framed. Learned trial court has framed issue no.4 as "If the raiyat right was validly determined and transferred to Government." Though no specific issue was framed, but the parties led evidence knowing very well as to what was the issue. Further, the prayer in the suit is for declaration that the plaintiffs are the occupancy raiyats over the suit land.
14. The suit is not for correction of ROR. Thus limitation prescribed under Section 42 of the Orissa Survey and Settlement Act does not apply. In view of the discussions made in the preceding paragraph, this will not help the plaintiffs. Learned courts below have not dismissed the suit on the ground of non-joinder of the parties, rather both the courts delved deep into the matter and decided the suit on merit. The substantial questions of law are answered accordingly.
15. In view of the foregoing discussions, the appeal fails and is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 29th July, 2019/PKS 8