Orissa High Court
Raghunath Jena And Ors. vs Adkikanda Panda on 20 February, 2008
Equivalent citations: 105(2008)CLT649
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This appeal is directed against the Judgment and decree passed by Learned Ad hoc Additional District Judge, Jajpur in T.A. No. 30 of 2000 confirming the Judgment and decree of Learned Civil Judge (Junior Division), Jajpur in T.S. No. 214 of 1998.
2. The Respondent as Plaintiff filed the title suit for declaration of his right title over the suit land, recovery of possession of the same after evicting the Defendants there from and also for a declaration that the Orders Dated 18.6.1987 passed by the Tahasildar, Jajpur in OLR Case Nos. 21 and 22 of 1980 are illegal and not binding on the Plaintiff. The Plaintiff's case in brief was that total area of Ac. No. 1 1.56 decimals appertaining to Plot Nos. 38, 41, 37 and 40 in Mouza-Bepari Berhampur in Jajpur Town belonged to Rama Krushna Sen, Purna Chandra Sen and Nani Gopal Sen, who were intermediaries in Khas possession. After vesting of these lands in the State as per the provision of Orissa Estates Abolition Act (in short, 'the Act'), these intermediaries applied for settlement of the above said lands under Sections 6 and 7 of the Act and the lands were settled in their favour. Out of these lands, Nani Gopal sold eastern 1/3rd share to one Kulamani Behera, whereas Rama Krushna and Purna Chandra sold the remaining 2/3rd share measuring Ac.0.76 decimals and some odd to the Plaintiff under two registered sale deeds dated 9.5.1979 and 11.4.1979 and put the Plaintiff in possession'. The Plaintiff thereafter got the lands mutated in his name and paid rent. There were fruit bearing trees on the suit land, so the Plaintiff fenced the land and constructed a watchman house and engaged Defendant No. 1 as watchman. The other Defendants, who are also family members of Defendant No. 1 joined Defendant No. 1 and filed OLR Case Nos. 21 & 22 of 1980 under Section 9 of the OLR Act claiming possession over that house, but the Tahasildar rejected their claim. Defendant Nos. 1 and 2 then preferred OLR appeal Nos. 40 and 41 of 1983 before the S.D.O., Jajpur, who remanded the matter for fresh enquiry and orders. The Tahasildar after enquiry settled the suit land in favour of the Defendant Nos. 1 and 2 under Section 9(1) of the OLR Act. The Plaintiff preferred appeal against that order of settlement, but there was no appeal provision and therefore, did not press that appeal. Defendants thereafter created trouble over the suit land. So, the Plaintiff filed the suit seeking the aforementioned relief.
3. Defendants in their written statement, while denying the plaint case pleaded inter alia that they were rayats under the vendors of the Plaintiff and were in possession of the suit land, that the Plaintiff never possessed the suit land and never inducted the Defendant No. 1 as watchman, that the OLR Court rightly and legally settled the suit land in favour of Defendant Nos. 1 and 2. The Defendants also challenged the maintainability of the suit on the ground of limitation and that the jurisdiction of the Civil Court stood barred under Section 67 of the OLR Act.
4. Learned Civil Judge framed 8 issues and accepted oral and documentary evidence of the parties. On consideration of these evidences, he came to the conclusion that the suit is not barred by limitation or Section 67 of the OLR Act, that the Plaintiff has acquired right, title and interest over the suit land and that the Defendants are in illegal occupation of that lands. He accordingly, decreed the suit. The Defendants carried appeal, but their appeal was dismissed and hence, the present appeal.
5. The appeal was taken up for final disposal at the stage of admission and the following questions of law were formulated for consideration:
(i) whether the Courts below were legally correct in saying that the suit of the Plaintiff is maintainable in the Civil Court despite the bar under Section 67 of the OLR Act, when there was already an adjudication of status of tile Defendants under Section 9 of the OLR Act vide Exts. 6 and 6/a?
(ii) Whether the Tahasildar acted without or in excess of his jurisdiction in passing the order under Section 9(1) of the OLR Act ignoring the bar in view of Section 73(c) of the said Act?
6. Mr. Purusottam Rana, Learned Counsel for the Appellants submits that in view of the order of settlement under Section 9(1) of the OLR Act passed by the Tahasildar under authority vested in special statute and the said order having not been challenged in any higher forum, the matter attained finality and the Civil Court, in view of the bar under Section 67 of the OLR Act, had no jurisdiction to reopen the issue in the suit. According to him, Section 73(c) of the OLR Act was never applicable to the present case as no notification was proved to show that the suit land forms part of the urban land. In support of his plea, Mr. Rana cited the cases of Gangaram Singh alias Beldar v. Mayadhar Mund and Anr. Vol. XLIV-1977 CLT 332; Raghunath Mohanty and Ors. v. State of Orissa and Ors. and Om Prakash Agarwal and Ors. v. Batara Behera and Ors. 1999 (II) OLR (SC)-182.
7. Mr. Ashok Das, Learned Counsel for the Respondent submits per contra that the suit land is admittedly homestead land where dwelling houses stand and pleading of the Plaintiff in paragraph-6 that the suit land situates within the municipal area of Jajpur was never controverted or rebutted by the Defendants. Rather some of the D.Ws admitted that the suit land situates on municipal holding of Jajpur and in view of such admission, there was no necessity of proving any notification. According to him, the suit land being part of the municipal urban area, the bar provided under Section 73(c) of the OLR Act was squarely applicable and therefore, the order of settlement passed by the Tahasildar in favour of the Defendants was without jurisdiction. He states that whenever the OLR authority acts without jurisdiction or in excess of jurisdiction, Civil Court can entertain suit to judge the legality of the order of the OLR authority. He also argued that even otherwise the jurisdiction of the Civil Court provided under Section 9 of the C.P.C. is not normally barred when the reliefs sought for in the suit cannot be entertained or granted by the special Tribunal. In essence he submits that the Civil Court had jurisdiction to entertain the suit when the Plaintiff had sought for declaration of his right, title and recovery of possession over the suit land which was beyond the powers of the OLR Court.
8. The normal rule of law is that the Civil Courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. Such exclusion is not to be readily inferred, the rule of construction being that every presumption should be made in favour of the existence rather than the exclusion of jurisdiction of the Civil Courts. Under that principle the burden to prove exclusion of jurisdiction is on the party who so contends. In the present case, the Appellants pleaded that the suit was not maintainable in view of the bar provided under Section 67 of the OLR Act. Orissa land Reforms Act is a Special Revenue Act where authorities have been contemplated to decide matters relating to the said Act and, therefore, a provision in Section 67 of the OLR Act has been created putting a bar on the jurisdiction of the civil Court to try and decide matters, which are within the competency of the OLR Courts. However, it has been settled through judicial pronouncements that where only a part of the relief claimed can be granted by the tribunal situated under the Special Act, the Civil Court would have jurisdiction to entertain the suit for the rest of the reliefs. It has also been settled that even if jurisdiction is excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure (see Secretary of State v. Mask and co. ).
9. Admittedly, in the present case, the Defendant Nos. 1 and 2 approached the OLR Court for settlement of the suit land in their favour, vide OLR Case Nos. 21 & 22 of 1980, under Section 9 of the Act and the settlement was granted. Section 73(c) of the OLR Act provides that the Act shall not apply to any area which the Government may, from time to time by notification in the official gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purposes. It was alleged by the Plaintiff that the suit land is part of the urban area of Jajpur Municipality and therefore, there was no scope of settling these lands in favour of the Defendant Nos. 1 and 2 under Section 9 of the Act. 'Urban land' means any land situated within the limits of an urban agglomeration and referred to as such in the master plan, or in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality, a notified area committee, a town area committee, a city and town committee etc. , but does not include any such land which is mainly used for the purpose of agriculture. So the bar of Section 73(c) of the OLR Act applies to lands which are included in the master plan for urbanization, but are not agricultural lands. In the case of Gangaram Singh alias Beldar (supra), the Board of Revenue, Orissa held that all the municipal areas are not areas for urban development and that a specific notification under Section 73(c) of the OLR Act is required in order to attract the bar. In the case of Raghunath Mohanty and Ors. (supra), a Division Bench of this Court ruled that application of the OLR Act is not excluded by virtue of Section 73(c) in regard to trust estates merely on the basis of a declaration that it is a trust estate. In the case of Om Prakash Agarwal and Ors. (supra) the Apex Court held that the bar provided under Section 73(c) of the OLR Act will not apply in the absence of notification showing the area earmarked for urbanization. There is no quarrel over the legal proposition that in the absence of clear notification that the suit property is set for urbanization, industrialization and other developmental purposes, the bar will not apply. But the observations in the above noted cases are not applicable to the present appeal, as the fact situation is some what different. In the present case, there was a clear pleading from the side of the Plaintiff that the suit land forms a part of the municipal area of Jajpur. This claim was not specifically denied by the Defendants in the written statement. D.W. 1 in paragraphs-3 and 4 of his evidence candidly admitted that the suit properties are municipal holdings of Jajpur and they are paying tax for these houses to the Municipality. D.W. 2 in paragraphs-3 and 11, D.W 4 in paragraph-1 also admitted that the suit houses stand on Municipal holding of Jajpur Town. The Defendants , themselves produced municipal holding receipts Ext. E series, which show that they and their predecessors-in-interest have been paying municipal holding tax etc to Jajpur Municipality before and after the order of settlement passed by the Tahasildar in the year 1987. This evidence amount to admission that the suit lands are urban lands coming within the Jajpur Municipality and are not agricultural lads. In the face of such admission, through oral and documentary evidence, there was no scope of searching for notification regarding urbanization of the area. Learned Courts below, therefore, rightly held that the suit property came within the purview of under Section 73(c) of the OLR Act and, therefore, settlement Under Section 9(1) of the OLR Act was not permissible.
10. In such background, when the Tahasildar settled the suit land in favour of Defendant Nos. 1 and 2, he exercised jurisdiction which was not vested in him. For that reason, the civil Court had jurisdiction to declare the order of settlement as illegal and without jurisdiction.
11. There was a prayer for declaration of right, title over the suit land on the basis of some sale deeds and possession. The relief of declaration of right, title over the suit land was beyond the jurisdiction of the OLR Court and, therefore, in view of general jurisdiction conferred under Section 9 of the C.P.C., the Civil Court had jurisdiction to entertain the suit of the Plaintiff. The substantial questions of law are thus, answered against the Appellants. Consequently, the appeal is dismissed on contest, but without any cost.