Orissa High Court
Dama Swain vs Gangadhar Mohapatra on 27 January, 1986
Equivalent citations: 1986(I)OLR268
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. This second appeal is filed by the defendant against the concurrent decisions of the Courts below decreeing the plaintiff's suit for permanent injunction.
2. The respondent filed O. S. No. 335 of 1973-1 before the Munsif, Puri, against the appellant with the prayer to permanently restrain the latter from going upon the land, from interfering with the possession of the suit land, from reaping, removing, destroying or otherwise causing any waste to the crops standing on the suit land by any means whatsoever. The suit land was described in the schedule to the plaint as Ac O. 74 decimals under plot No. 1084, Khata No. 391, of Mouza Kamasasan in the district of Puri. The gist of the case made out in the plaint was that the suit land formed a part of the estate of the deity Banambar Deb installed at Markandeswar sahi. The Marfatdars of the deity had inducted the father of the plaintiff to hold and cultivate the suit land as a raiyat under them on condition of paying Sanja trend (in kind). An unregistered deed was executed by the Marfatdars of the deity in the year 1945 through their power-of-attorney holder, Lingaraj Rath, for this purpose. The plaintiff's father being a settled raiyat of the village, acquired occupancy right in respect of the suit land of which he was in cultivating possession throughout his life. The intermediary interest of the deity was abolished in 1966 under the provisions of Orissa Estates Abolition Act in short 'the Act). After vesting of the estate, the local revenue authorities on enquiry found the plaintiff's father and the plaintiff to be in possession of the suit property and recognised them as tenants under Section 8(1) of the Act. Subsequently, at the instance of the plaintiff the kind rent was commuted to cash rent under Section 5(9) of the O. L. R. Act.
It was further case of the plaintiff that the defendant having failed to get the land settled with him, with connivance of the ex-inter-mediaries, managed to get some papers in his favour, without any right, title or interest in the suit property. The said defendant threatened to forcibly reap and remove the paddy crops standing on the suit land raised by the plaintiff. Hence, the suit for the reliefs noticed earlier.
3. The defendant (appellant) in his written statement denied the claim of the plaintiff. He denied that the suit property was held by the plaintiff's father as tenant or that Lingaraj Rath as power of attorney holder of the Marfatdars of the deity executed any document in his favour in 1945. He also denied that the plaintiff or his father or brother ever held the land or that they had occupancy right in the same.
It was asserted in the written statement that the defendant was cultivating the suit property under Banambar Deb as a tenant and was paying the bag dues. After vesting the estate of Banambar Deb in the State, this position continued and he continued to be in possession of the suit land. On these averments he prayed for dismissal of the suit.
4. The trial Court framed as many as seven issues including the issue whether the suit as framed was maintainable and if the suit for permanent injunction only was maintainable in view of the admitted dispute. The Court on consideration of the materials on record held that the plaintiff had right, title, interest and possession over the suit land and the suit for permanent injunction was maintainable. Accordingly, the trial Court decreed the suit against the defendant and permanently injuncted him from interfering with the peaceful possession of the plaintiff over the suit land.
On appeal by the defendant the lower appellate Court confirmed the decision of the trial Court holding that the plaintiff had acquired right of occupancy in the land in question and being in possession he is entitled to get the injunction prayed for. Alternatively, the appellate Court came to hold that even assuming that the plaintiff has not proved his title over the suit land yet being in possession of the land, he is entitled to resist aggression of others excepting the true owners and the defendant having failed to show his title or possession, the suit for permanent injunction was to be decreed.
5. Sri N.C. Pati, learned counsel for the appellant, contends that the Civil Court has no jurisdiction to hear and dispose of the suit in view of the Section 67 of the Orissa Land Reforms Act, 1960. It is his submission that the dispute in the case is essentially one of rival claims of tenancy in the suit land which comes within the purview of Section 16 of the Act and the Revenue Officer is empowered to decide such a dispute. The Revenue Officer is also empowered under the provisions of the Act to enforce his order. As such, the bar of jurisdiction under Section 67 of the Act operates in this case.
The contention needs careful consideration. From the facts narrated in the foregoing paragraphs, it is clear that both the plaintiff and the defendant are claiming to be tenants in respect of the disputed property. It is the admitted case of the parties that prior to vesting of the estates, the ex-intermediary was the landlord in respect of the suit land and after vesting, the land belongs to the State Government. In these circumstances, there is no dispute as to the relationship of landlord and tenant in this case. The dispute is essentially one of identity of tenant in cultivation of the suit property. Section 16 of the Act provides that if any doubt arises as to the identity of the tenant in cultivation of any land, such dispute shall, after such enquiry as may be prescribed, be decided by the Revenue Officer on his own motion, or on the application of the landlord or any person claiming to be in such cultivation and the Revenue Officer may pass such order as he may deem necessary. From this provision, it is clear that the dispute in the case squarely comes within the scope of Section 16 of the Act.
The other question for consideration is if the bar of jurisdiction of the Civil Court as provided under Section 67 of the Act is attracted in the case. The said Section reads as follows :
"67. Bar of jurisdiction of Civil Courts :
Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide."
Before the bar in the aforesaid provision can be held to operate in a particular case, it has to be established that the subject-matter of the dispute is one which an officer or any other competent authority is empowered by or under the Act to decide. The principle underlying the provisions of the section is to avoid parallel enquiries being held by the Revenue authorities as well as by the Civil Court.
6. Keeping in view the aforesaid provisions, it has to be examined whether the authorities under the O.L.R. act are empowered to deal with the matter in dispute in the suit. As noticed earlier, the relief sought in the suit is to permanently restrain the defendant from going upon the suit land, from interfering with the possession of the suit land and from reaping, removing, destroying or otherwise causing any waste to the crops standing on the suit land. The positions not disputed by the learned counsel for the appellant that there is no express provision in the O.L R. Act vesting power in the authorities to grant permanent injunction. But there are some provisions as I shall presently point out which empower authorities under the Act to take necessary steps for effective implementation of their orders.
Section: 65 of the Act which deals with the execution of the order provides, in eralia,, that the authority passing an order under any of the provisions of this Act may, on his own motion or application in the prescribed manner, direct that possession of any land forming the subject matter of such an order be delivered to the person entitled to such possession and take such steps as may be necessary to give effect to his orders. The provision further provides that penalties and other dues, if any, payable to Government under the provisions of this Act shall be realisable as arrears of land revenue.
Rule 47 provides that an application under Section 65 for delivery of possession shall be accompanied by a certified copy of the order in pursuance of which delivery of possession is applied for and no direction for delivering possession of land shall be issued by the Revenue Officer without giving the parties interested a reasonable opportunity of being heard.
Rule 17 of the Orissa Land Reforms (General) Rules, 1965, enumerates the points to be taken into consideration in the enquiry in case of a dispute under Section 16 as to identity of the tenant in cultivation of any land. The points are : (a) orders, if any of a competent Court on the subject; (b) the statement of the landlord and tenant as to the identity of the tenant; (c) the availability of rent receipts in proof of possession of land under dispute; (d) any other evidence, either oral or documentary, available in support of the claim.
From the aforesaid provisions, it is clear that the O.L.R. Act not only empowers the authority under the Act to determine any dispute regarding identity of the tenant in cultivation of any land but it also provides for implementation of its order by directing delivery of possession to the person entitled to be in possession of the disputed property. As such, it cannot be said that the relief of permanent injunction is not within the competence of the authorities under the Act and therefore bar of jurisdiction in Section 67 of the Act does not apply to the case. A similar question came up for consideration before this Court in the case of Smt. Gouri Dei and another v. Agadhu Sahu and another, XXXVI (1971) CLT. 687, wherein the Chief Justice C. K. Misra observed as follows :
XX XX XX It would be appropriate to examine if Sub-Sections (5), (6) and (7) of Section 15 of the Act confer any power on the Revenue Officer to grant injunction.
Section 15(5) makes a clear provision in that regard. If the Revenue Officer is satisfied that the tenant was cultivating the land at the date of commencement of the Act or at any time thereafter, and that he is being unlawfully prevented from cultivating such land by his landlord, he may order the landlord by a notice served in the prescribed manner to allow the tenant to enter the land forthwith and to cultivate it as a tenant. The conditions essential for the operation of Sub-section (5) are :
(i) the tenant must be in possession ;
(ii) he is being unlawfully prevented from such land ; and
(iii) if the first two conditions are fulfilled, the Revenue Officer would issue a notice to the landlord in the prescribed manner nor to interfere with the tenant's possession and to allow him to cultivate.
These elements are substantially what is required in the matter of issuing an injunction.
Sub-Section (6) vests the Revenue Officer with power to see that the order issued by him under Sub-Section (5) is enforced. If the landlord fails to comply with such order the Revenue Officer shall take steps to put the tenant in possession of the land.
Sub-Section (7) deals with various other types of interim orders but does not refer to what is covered by Sub-Sections (5) and (6).
It is clear from the aforesaid analysis that the Revenue Officer has been vested with powers to grant the relief of injunction. As the Act empowers the Revenue Officer to grant injunction to suitable cases, the jurisdiction of the civil Court to grant the same relief is clearly barred by Section 67.
Section 3 fays down that save as otherwise provided, the provisions of the Act shaft have effect, notwithstanding anything to the contrary in any other law, custom or usage or agreements, decree or order of Court. Though the Civil Court has got jurisdiction to issue temporary injunction under Order 39, Civil Procedure Code, or permanent injunction under the Specific Relief Act, it cannot exercise the jurisdiction in respect of disputes between a landlord and his tenant contemplated by Section 15(1)(b) of the Act. The preliminary objection must therefore, prevail. The learned Munsif, Khurda, has no jurisdiction to try this suit where the main relief is for issue of permanent injunction.
No doubt in that case the dispute was one regarding the relationship of landlord and tenant which comes within the purview of Section 15 of the Act. On an analysis of the provisions of Section 15 of the Act, it was held that all conditions essential for issuing an order of injunction ate covered under Section 15(5) of the Act, powers of enquiry where under is vested with the Revenue Officer.
In view of the discussions in the foregoing paragraphs, I would, with respect, hold that the analysis in the decided case is also applicable in the present case, and it has to be held that the Civil Court had no jurisdiction to try the suit.
7. In the result, the second appeal succeeds and it is allowed. The judgment and decree passed by the Courts below are vacated. Both the parties shall bear their respective costs throughout.