Orissa High Court
Balasore Municipality Represented vs Abdul Kadar Dahlani & Others on 17 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.128 of 2013
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Balasore Municipality represented .... Appellant
by the Executive Offier, At/P.O.-
District-Balasore.
-versus-
Abdul Kadar Dahlani & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. Niranjan Panda, Advocate
For Respondents - Mr. Maheswar Mohanty, Advocate
(For respondent Nos.2 to 5)
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :22.04.2024:: Date of Order :17.05.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment.
2. The appellant of this 2nd Appeal was the defendant before the Trial Court in the suit vide C.S. No.970 of 2006-I and the appellant was the respondent before the First Appellate Court in the 1 st Appeal vide R.F.A. No.147 of 2009-I. Page 1 of 17 R.S.A. No.128 of 2013 {{ 2 }} The respondent No.1 of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide C.S. No.970 of 2006-I and he was the appellant before the First Appellate Court in the 1 st Appeal vide R.F.A. No.147 of 2009-I. The respondent No.2 to 5 have been impleaded as parties in this 2 nd Appeal as per Order dated 22.04.2024 passed in I.A. No.655 of 2023.
3. The suit of the plaintiff (respondent No.1 of this 2nd Appeal) vide C.S. No.970 of 2006-I against the defendant (appellant of this 2nd Appeal) was a suit for declaration.
4. According to the plaintiff, the suit properties are Hal Plot Nos.137,138,140 & 141 in total Ac.0.38 Decimals under Hal Khata No.275 in Mouza Gopalgaon under Town PS of Balasore District corresponding to CS Plot No.37 under C.S. Khata No.39.
The suit properties along with other properties were acquired by the Balasore Municipality (defendant) as per the provisions of Land Acquisition Act and after acquisition of the suit properties, Balasore Municipality became the exclusive owner of the same and leased out the suit properties to Sk. Mahiuddin Abdul Kadar and Gulam Mahiuddin and on the basis of the said lease, the lessee of the suit properties i.e. Sk. Mahiuddin Abdul Kadar and Gulam Mahiuddin possessed the suit properties and reclaimed the same and made it fit for house and Page 2 of 17 R.S.A. No.128 of 2013 {{ 3 }} homestead and constructed their residential house on the same by digging a tank, installing limekiln and raising various fruits bearing plants therein. One of the lessee i.e Gulam Mahiuddin sold his half interest in the suit properties to the other lessee i.e. to Sk. Mahiuddin Abdul Kadar through R.S.D. dated 08.05.1957 and after purchasing the half interest of Gulam Mahiuddin in the suit properties, the other lessee i.e. Sk. Mahiuddin Abdul Kadar became the exclusive owner over the entire Ac.0.38 Decimals suit properties and mutated his name in the Municipality office in place of Gulam Mahiuddin and paid the rent of the suit properties to the Municipality (defendant). When, the defendant (Balasore Municipality) created disturbances In the possession of that Sk. Mahiuddin Abdul Kadar giving threat for creation of third party interest therein, then, Sk. Mahiuddin Abdul Kadar instituted a suit vide O.S. No.39 of 1973 against the defendant for declaration of his right, title and interest over the suit properties and to injunct the defendant (Balasore Municipality) from creating any sort of disturbance in his possession over the suit properties. The said suit vide O.S. No.39 of 1973 of the Sk. Mahiuddin Abdul Kadar was decreed against the defendant. Then, on being aggrieved with the Judgment and Decree of the suit vide O.S. No.39 of 1973 passed in favour of Sk. Mahiuddin Abdul Kadar, the defendant municipality preferred an appeal before the First Appellate Page 3 of 17 R.S.A. No.128 of 2013 {{ 4 }} Court vide S.J.A. No.17/8 OF 1976/76-I. That 1st appeal of the defendant was dismissed and the Judgment and Decree of the Trial Court passed in O.S. No.39 of 1973 in favour of the Sk. Mahiuddin Abdul Kadar was confirmed.
Thereafter, Sk. Mahiuddin Abdul Kadar sold the suit properties to the plaintiff i.e Abdul Kadar Dahlani for a consideration of Rs.5,000/- and delivered possession thereof and since, the date of purchase, the plaintiff possessed the suit properties exclusively after purchasing from Sk. Mahiuddin Abdul Kadar and till yet, he (plaintiff) has been possessing the suit properties as the owner thereof. But, in the last settlement, the R.o.R of the suit properties was prepared erroneously by the settlement authorities in the name of the defendant municipality indicating the note of possession of the plaintiff in the remarks column of the Hal R.o.R of the suit plots. But, the settlement authorities should have prepared R.o.R of the suit properties in the name of the plaintiff giving respect to the Judgment and Decree passed by the Civil Court in O.S. No.39 of 1973 filed by the vendor of the plaintiff. By the wrong and erroneous R.o.R prepared by the settlement authorities in respect of the suit properties in favour of the defendant (Balasore Municipality), the right, title, interest and possession of the plaintiff over the suit properties cannot be affected.
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{{ 5 }} But, when by taking the advantage of such erroneous Hal R.o.R of the suit properties in the name of the defendant (Balasore Municipality), the defendant (Balasore Municipality) attempted to lease out the suit properties to a stranger on dated 22.04.2006 and threatened the plaintiff to dispossess him from the suit properties by demolishing the structures made by him, then, without getting any way, the plaintiff approached the civil court by filing the suit after complying the provisions of Section 349 of the Orissa Municipal Act regarding the service of notice upon the Balasore Municipality (defendant) praying for a declaration that, the M.S. R.o.R prepared in respect of the suit land be declared as erroneous along with other relief, to which, he (plaintiff) is entitled for.
5. Having been noticed from the Trial Court in the suit vide C.S. No.970 of 2006-I, the defendant (Balasore Municipality) contested the same by filing written statement denying the allegations alleged by the plaintiff in its plaint against the defendant by taking its stands therein that:
The suit properties along with other properties were recorded in the name of the defendant (Balasore Municipality) in the C.S. R.o.R and the vendor of the plaintiff i.e. Sk. Mahiuddin Abdul Kadar and another Gulam Mahiuddin were the licensee of the suit properties under the Balasore Municipality (defendant) in order to produce slaked lime and to Page 5 of 17 R.S.A. No.128 of 2013 {{ 6 }} use the same as trenching ground, for which, Gulam Mahiuddin had no authority to alienate his interest in the suit properties in favour of Sk. Mahiuddin Abdul Kadar through R.S.D. dated 08.05.1957. Therefore, the said sale deed dated 08.05.1957 behind the back of the defendant (Balasore Municipality) is illegal, as the defendant, (Balasore Municipality) is the owner of the suit properties. For which, the recording of the suit properties in the name of the defendant in the Hal Settlement is lawful and proper. In the suit vide O.S. No.39 of 1973 filed by the vendor of the plaintiff i.e. Sk. Mahiuddin Abdul Kadar against the defendant, the court had declared that, the plaintiff i.e. Sk. Mahiuddin Abdul Kadar (the vendor of the plaintiff), is a permanent tenant in respect of the suit properties and he is in possession of the same and restrained the defendant (municipality) permanently from disturbing the possession of the plaintiff in the suit land and also restrained the defendant from settling any portion of the suit land with anybody else.
The aforesaid ordering portion of the Judgment passed in O.S. No.39 of 1973 is not showing about the acquisition of any sthitiban or transferable right in favour of the Sk. Mahiuddin Abdul Kadar extinguishing the ownership of the defendant (Balasore Municipality), for which, Sk. Mahiuddin Abdul Kadar had no alienable right over the suit properties to alienate the suit properties in favour of the plaintiff. Page 6 of 17 R.S.A. No.128 of 2013
{{ 7 }} Therefore, the plaintiff has no right, title and possession over the suit properties as per law. But, the defendant (Balasore Municipality) has its title and lawful possession on the same. That apart, the vendor of the plaintiff i.e. Sk. Mahiuddin Abdul Kadar has not informed about the alienation of the suit properties by him to the defendant (Balasore Municipality). The plaintiff has also not intimated about his purchase to the Balasore Municipality, for mutation of his name in respect of the suit properties. Therefore, the plaintiff has no right, title, interest and legal possession over the suit properties. Therefore, the suit of the plaintiff is liable to be dismissed against the defendant.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 numbers of issues were framed by the Trial Court in the suit vide 970 of 2006 and the said issues are:
Issues i. Is the suit legally maintainable?
ii. Is there any cause of action to bring the suit? iii. Is the suit barred by law of limitations?
iv. Whether the vendor of the plaintiff has
transferrable right?
v. Whether the MSROR prepared in the name of
the defendant is wrong and erroneous?
vi. Whether the plaintiff is entitled to the relief
prayed for?
vii. To what other relief?
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R.S.A. No.128 of 2013
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7. In order to substantiate the aforesaid relief sought for by the plaintiff in his suit vide C.S. No.970 of 2006-I, he (plaintiff) examined himself as P.W.1 and relied upon the documents vide Ext.1 to 10.
But, the defendant without examining any witness on its behalf and also without exhibiting any document from its side participated in the hearing of the suit by cross examining the witness of the plaintiff.
8. After conclusion of hearing of the suit vide C.S. No.970 of 2006-I and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues against the plaintiff and in favour of the defendant and basing upon the findings and observations made by the Trial Court in the issues against the plaintiff and in favour of the defendant the Trial Court dismissed the suit of the plaintiff vide C.S. No.970 of 2006-I as per its Judgment and Decree dated 08.12.2009 and 15.12.2009 respectively refusing the prayer of the plaintiff to declare the recording of Hal RoR of the suit land in favour of the defendant as erroneous.
9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff vide C.S. No.970 of 2006-I, he (plaintiff) challenged the same by preferring the 1st Appeal vide R.F.A No.147 of 2009-I against the defendant by arraying the defendant as respondent.
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{{ 9 }} After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide R.F.A. No.147 of 2009-I and passed the Judgment and Decree of that 1st Appeal vide R.F.A No.147 of 2009-I on dated 30.11.2012 and 15.12.2012l respectively and set aside the Judgment and Decree of the dismissal of the suit of the plaintiff vide C.S. No.970 of 2006-I passed by the Trial Court and decreed the suit of the plaintiff vide C.S. No.970 of 2006-I on contest against the defendant and declared that, the Hal M.S R.o.R of the suit properties prepared in the name of the defendant under suit Khata No.275 is held as wrong and erroneous assigning the reasons that, the vendor of the plaintiff i.e. Sk. Mahiuddin Abdul Kadar had got right, title and interest over the suit properties as per the Judgment and Decree passed in O.S. No.39 of 1973 and when, the said Sk. Mahiuddin Abdul Kadar has sold the suit properties in favour of the plaintiff, then, the plaintiff has got right, title, interest and possession over the suit properties and when, the plaintiff has filed the suit within 3 years of the accrual of cause of action due to the threat given by the defendant affecting the title of the plaintiff on the suit properties then, the plaintiff is entitled to get the decree of the above declaration.
10. On being aggrieved with the aforesaid Judgment and Decree dated 30.11.2012 and 15.12.2012 respectively passed by the 1 st Appellate Court in R.F.A. No.147 of 2009-I in favour of the plaintiff granting the decree Page 9 of 17 R.S.A. No.128 of 2013 {{ 10 }} of declaration against the defendant, the defendant (Balasore Municipality) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff by arraying the plaintiff as respondent.
11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.
a) Whether the limitation prescribed as three years in Section-42 of the O.S.S Act can be extended by the Court applying the provisions of the Limitation Act, particularly in a suit for correction of ROR when no other relief is sought for?
b) Whether the name of lesser, Balasore Municipality can be deleted from the record of Right without compliance of Section 127 of Orissa Municipal Act?
12. The respondent Nos.2 to 5 have been impleaded in this 2nd Appeal as per Order No.10 dated 22.04.2024 passed in I.A. No.665 of 2023, as the assignee of the respondent No.1 (plaintiff) in respect of the suit properties.
I have already heard from the learned counsel for the appellant and the learned counsel for the respondent Nos.2 to 5.
13. As the above formulated substantial questions of law are inter linked having ample nexus with each other concerning the findings and observations made by the Trial Court and First Appellate Court in their respective Judgments and Decrees according to the pleadings of the Page 10 of 17 R.S.A. No.128 of 2013 {{ 11 }} parties, for which, in order to have the just decision of the 2 nd Appeal both the substantial questions of law are taken up analogously for their discussion.
The First Appellate Court has held in its Judgment and Decree passed in R.F.A. No.147 of 2009-I that, the vendor of the plaintiff Sk. Mahiuddin Abdul Kadar had transferable title in the suit properties on the basis of the confirmed Judgment and Decree passed in the suit vide O.S. No.39 of 1973 filed by him against the defendant (Balasore Municipality) in respect of the suit properties.
It appears from the Judgment of the Trial Court passed in C.S. No.970 of 2006-I that, the Judgment and Decree passed in the suit vide O.S. No.39 of 1973 in favour of the vendor of the plaintiff has been marked as Ext.4. The conclusive part of the Judgment passed in O.S. No.39 of 1973 vide Ext.4 reveals as follows:
"That the suit be and the same is hereby decreed on contest against the defendant No.1 (Balasore Municipality) with cost and ex parte against the defendant No.2 without cost.
It is declared that, the plaintiff is a permanent tenant in respect of the suit land and he is in possession of the same. The defendants are permanently restrained from disturbing in the possession of the Page 11 of 17 R.S.A. No.128 of 2013 {{ 12 }} plaintiff in the suit land and the defendant No.1 is restrained from settling any portion of the suit land with anybody else."
14. The above conclusive part of the Judgment and Decree passed in O.S. No.39 of 1973 (Ext.4) is clearly and unambigouslyu going to show that, the court declared to the plaintiff (vendor of the plaintiff in the present suit) as a permanent tenant in respect of the suit properties and restrained the defendant (Balasore Municipality) from settling any portion of the suit land with anybody else and also restrained the defendant (Balasore Municipality) from disturbing in the possession of the plaintiff over the suit land.
In the above Judgment and Decree passed in O.S. No.39 of 1973 vide Ext.4, the title of the plaintiff i.e. Sk. Mahiuddin Abdul Kadar over the suit properties was not declared. But, he (vendor of the plaintiff) i.e. Sk. Mahiuddin Abdul Kadar was declared as a permanent tenant in respect of the suit properties under defendant No.1 (Balasore Municipality) and the defendant No.1 (Balasore Municipality) was restrained from settling any portion of the suit land with anybody else, as Sk. Mahiuddin Abdul Kadar was declared as a permanent tenant in respect of the suit properties under its owner i.e. under the defendant No.1 (Balasore Municipality).
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{{ 13 }} The above Judgment and Decree passed in O.S. No.39 of 1973 is ultimately going to show that, Balasore Municipality is the owner of the suit properties and the vendor the plaintiff i.e. Sk. Mahiuddin Abdul Kadar was a permanent tenant in respect of the suit properties under the Balasore Municipality. To which, in other words it can be said that, the vendor of the plaintiff was declared as a permanent lessee in respect of the suit properties under its owner i.e. Balasore Municipality.
The meaning of lease as per Section 105 of the TP Act, 1882 is that, A lease of immoveable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Therefore, in order to constitute a lease, there must be transfer of estate for a term. Even in case of perpetual lease for 99 years, when lease however not renewed, the tenancy terminated, even if the lessor office accepted rent, it is immaterial, the title of the lessee cannot be claimed over the properties. Sub-lessee transferee from lessee in respect of the suit properties cannot acquire better right than the transferor lessee and a decree against lessee binds the sub-lessee.
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15. On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:
I. 2012 (2) OLR 815& (2013) 116 CLT 49:Vinayak Missions Lord Jagannath Institute of Dental Science and Research, Bhubaneswar Vs. State of Orissa & Others (2016) 3 CCC 246: Amit Tiwari, Trustee of K.P. Foundation & Ors. Vs. Marco Polo Restaurant Pvt. Ltd (Para No.19)--T.P. Act, 1882, Section 105--To constitute a lease, there must be a transfer of an estate for a term.
II. AIR 1997 (SC) 2690:Murlidhar Jalan (since deceased) by LRs Vs. State of Meghalaya & Others--Government Grants Act (15 of 1895), Section 3--Perpetual lease by Government for 99 years--Lease not renewed after expiry--Relationship as tenant and landlord stood terminated--Party concerned is not entitled to declaration that he is landholder--Lesser level officer accepting rent--Immaterial--It cannot be construed that there by title of party was confirmed. (Para No.3) III. 96 (2003) CLT 700 (SC):Chandy Varghese & Others Vs. K. Abdul Khader & Others--T.P. Act, 1882, Section 105--Lease means, the transfer of interest in land--Transferee from the lessor cannot acquire better rights that what his transferor (lessor).
(Para No.8) IV. 2022 (2) CCC 207 (Cal.):Jyoti Biswas & Others Vs. Raj Kumar Ghosh & Others--T.P. Act, 1882, Section 109-- Ordinarily a decree against the lessee binds the sub-lessee--In a decree against the lessee for eviction--Sub-lessees may be evicted.
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16. Here in this suit/appeal at hand, when the plaintiff has claimed his title over the suit properties alleging the erroneous recording of the suit properties in favour of the defendant (Balasore Municipality) as per the purchase of the suit properties from Sk. Mahiuddin Abdul Kadar through RSD dated 12.05.1975 on the basis of the Judgment and Decree passed in O.S. No.39 of 1973 (Ext.4) in favour of his vendor Sk. Mahiuddin Abdul Kadar and when the Judgment and Decree passed in O.S. No.39 of 1973 (Ext.4) is clearly and unambiguously going to show that, the defendant (Balasore Municipality) is the owner of the suit properties and Sk. Mahiuddin Abdul Kadar (vendor of the plaintiff) is a permanent lessee/tenant under the defendant (Balasore Municipality) and when a lessee of the suit properties cannot transfer any better right in the leasehold properties then what he had and when, ownership of the Balasore Municipality over the suit properties has already been established as per the Judgment and Decree passed in O.S. No.39 of 1973 (Ext.4) and when, Balasore Municipality has not transferred/alienated its ownership over the suit properties either to Sk. Mahiuddin Abdul Kadar (vendor of the plaintiff) or Sk. Abdul Kadar Dahalani (plaintiff) or in favour of the respondent Nos.2 to 5 in this 2 nd Appeal and when, the lessee of the suit properties i.e. Sk. Mahiuddin Abdul Kadar as per the Judgment and Decree passed in O.S. No.39 of 1973 cannot alienate any Page 15 of 17 R.S.A. No.128 of 2013 {{ 16 }} better right in the suit properties then what he had, then, at this juncture, by applying the principles of law enunciated by the Hon'ble Courts and Apex Court in the ratio of the above decisions to the suit/appeal at hand, it cannot be held that, the preparation of the R.o.R of the suit properties in the name of its owner i.e. Balasore Municipality (defendant) under Khata No.275 is erroneous. Because the Judgment and Decree regarding the ownership of the defendant (Balasore Municipality) over the suit properties passed in O.S. No.39 of 1973 (Ext.4) has already been reached in its finality due to the confirmation of the said judgment in the 1st Appeal vide S.J.A. No.17/8 OF 1976/76-I between the vendor of the plaintiff and Balasore Municipality. For which, the Judgment and Decree passed by the First Appellate Court in R.F.A. No.147 of 2009-I declaring that, the M.S R.o.R of the suit properties in the name of the defendant in respect of the suit Khata No.275 is wrong and erroneous cannot be sustainable under law. Because, the defendant (Balasore Municipality) is the established owner over the suit properties as per the earlier Judgment and Decree passed in O.S. No.39 of 1973 (Ext.4). For which, the Judgment and Decree passed by the First Appellate Court in R.F.A. No.147 of 2009-I cannot be sustainable under law.
17. Therefore, there is justification under law for making interference with the Judgment and Decree passed by the First Appellate Court in Page 16 of 17 R.S.A. No.128 of 2013 {{ 17 }} R.F.A. No.147 of 2009-I through this 2nd Appeal filed by the defendant (Balasore Municipality).
18. As such, there is merit in the appeal of the appellant (defendant). The same must succeed.
19. In result, the appeal filed by the appellant (defendant) is allowed on contest against the respondents, but without cost.
20. The Judgment and Decree dated 30.11.2012 and 15.12.2012 respectively passed in R.F.A. No.147 of 2009-I are set aside.
21. The Judgment and Decree regarding the dismissal of the suit of the plaintiff vide C.S. No.970 of 2006-I passed by the Trial Court are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
17.05.2024,//Rati Ranjan Nayak// Senior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 20-May-2024 12:38:54 Page 17 of 17 R.S.A. No.128 of 2013