Orissa High Court
Smt.Ranu Sen And Others vs State Of Orissa And Others on 20 November, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A.No.340 of 2006
From a judgment and decree dated 26.4.2006 and 10.5.2006
respectively passed by Mr.P.Das, learned Ad hoc Additional District
Judge (F.T.C.), Balasore in Title Appeal No.46/37 of 2002/2001
confirming the judgment and decree dated 18.2.2001 and 3.3.2001
passed by learned Additional Civil Judge (Sr.Division), Balasore in
Title Suit No.228 of 1991.
-------------
Smt.Ranu Sen and others .... Appellants
Versus
State of Orissa and others .... Respondents
For Appellants -- Mr.D.P.Mohanty, Advocate.
For Respondents -- Mr.R.P.Mohapatra,
Addl. Government Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 08.11.2017 & Date of Judgment: 20.11.2017
Dr.A.K.RATH, J.The plaintiffs are the appellants against an affirming judgment.
2. Sisir Chandra Sen, the predecessor-in-interest of the appellants, instituted the suit for declaration that the suit schedule property is a part and parcel of his lease hold land, confirmation of possession and in the alternative for recovery of possession. The case of the plaintiff is that his father acquired Ac.13.35 dec. of land in village Inchudi described in schedule 'A' and 'B' property from the then landlord either by way of Amalanama or by way of registered 2 lease deed. Before the estate vested in the State, the ex-intermediary leased out Ac.11.14 dec. of land appertaining to C.S.khata No.251, Anabadi C.S.plot no.1924. Inadvertently he could not submit rafa in his father's name in respect of Ac.5.00 dec. of land. His father acquired Ac.0.30 dec. of land appertaining to C.S.khata no.336, C.S.plot no.1937 by means of an Amalanama dated 12.4.44 granted by the ex-intermediary. He paid rent to the ex-intermediary. The ex- intermediary did not submit rafa in the name of his father. His father reclaimed Ac.0.30 dec. of land out of the adjoining plot no.1964 out of C.S.plot no.1937 and excavated a tank thereon. Gradually he reclaimed an area of Ac.0.73 dec. out of plot no.1937. He filed an application for lease of the land, which was registered as R.F.Case No.144/61 of 1959-60. The case was disposed of in favour of father of the plaintiff on 15.2.1962. It was further pleaded that Ac.0.88 dec. of land appertaining to C.S.khata no.346, plot no.1926 was settled in the name of his father by means of a registered permanent lease deed dated 26.5.46 executed by the then landlord. His father was in possession of A0.13.35 dec. of land. After vesting, it was found that the ex-intermediary had not submitted the rafa in respect of Ac.5.00 dec. of land appertaining to C.S. plot no.1924. Thereafter, the Tahasildar, Balasore initiated L.E.Case No.87 of 1967 against his father in respect of Ac.5.00 dec. of land. The case was dropped on 25.6.1973. The Tahasildar directed the Revenue Inspector to open tenants ledger, realize annual rent and cess with interest from the date of vesting. His father died in the year 1969 leaving behind his only heir. During the major settlement, the land was recorded in the name of the State under Abadjogya Anabadi Khata. He filed a revision before the Commissioner, Land Records and Settlement, Orissa. The latter directed the plaintiff to agitate his claim before the Tahasildar, Balasore. Pursuant to the direction of the Commissioner, Land Records and Settlement, he filed an application before the 3 Tahasildar, Balasore. The same was rejected. With this factual scenario, he instituted the suit seeking the relief mentioned supra. It is apt to state here that during pendency of the suit the sole plaintiff died, whereafter his legal heirs have been substituted.
3. The defendant filed written statement denying the assertions made in the plaint. The case of the defendant was that on verification of the current settlement record of right, it was found that Anabadi khata no.251, plot no.1924, area Ac.48.69 dec., Puruna Padia of mouza-Inchudi is a big patch of land out of which suit land is Ac.11.14 dec.. Anabadi khata no.251, plot no.1964, area Ac.106.11 dec., out of which the suit land is A0.30 dec. It's kissam is bali. Out of Ac.41.77 dec. of land appertaining to Anabadi khata no.336, plot no.1926, the suit land is A0.88 dec. Anabadi khata no.336, plot no.1937, area 25.81 dec., out of which the suit land is A0.30 dec. It's kissam is gocher. It was further found that kissam of plot nos.3345, 3382, 3386, 3387 and 3388 is gochar. Kissam of Plot nos.3343, 3344, 3348, 3349, 3351 and 2984 is Sarad-II and plot no.3360 is Gharbari. In the remarks column of the said schedule, illegal possession of Sisir Chandra Sen has been reflected. Father of the plaintiff applied for settlement of an area A0.30 dec. out of A.106.11 dec. appertaining to C.S.Plot no.1964 in R.F.Case No.144/61 of 1959-60. The same was disposed of on 15.2.62. The permanent lease dated 26.5.46 in respect of C.S.Khata no.346, C.S.plot no.1926, area A0.88 dec. is antedated. The lease was granted after 1.1.46. The Major Settlement R.O.R. shows that an area of A0.5.53 dec. has been recorded in the name of the plaintiff under stihitiban khata no.735 i.e., A.5.00 acre of land as per rafa submitted by the ex-intermediary plus A0.30 dec. of land as decided in R.F.Case No.144/61 of 1959-60. No rafa was submitted by the ex- intermediary in respect of A0.88 dec. of land. L.E.Case nos.38/88 4 and 47/88 were initiated against the plaintiff in respect of an area A0.7.21 decs. which includes the disputed land. L.E. Cases are sub- judice. The suit is barred under Section 16 of the O.P.L.E.Act. The amalnama patta and rent receipts are manufactured documents. The tenants ledger was opened without any authority.
4. On the inter se pleadings of the parties, the learned trial court struck seven issues. The plaintiff adduced evidence both oral and documentary to substantiate the case. No evidence was adduced by the defendant. The suit was dismissed. The unsuccessful defendant filed appeal before the learned District Judge, Balasore, which was subsequently transferred to the court of the learned Ad hoc Additional District Judge, (F.T.C.), Balasore and renumbered as Title Appeal No.46/37 of 2002/2001. The same was eventually dismissed.
5. The second appeal was admitted on 2.8.2010 on the following substantial questions of law:
"(a) If the learned Courts below are correct in ignoring the settled position of law that an agricultural tenancy created on the basis of an unregistered lease deed executed prior to 1.1.1946, coupled with acceptance of rent is valid and in such circumstances, if the tenant continues in possession till the date of vesting, he assumes the status of a deemed tenant under the State, under Section 8 of the Orissa Estates Abolition Act ?
(b) In this connection, if the Courts below are correct in ignoring, the fact that even assuming that an unregistered permanent lease does not confer tenancy right, but if subsequent to such lease, rent has been demanded and paid, the relationship of landlord and tenant comes into existence?
(c) Whether the finding of the learned Courts below so far as the same relates to Exts.21, 22, 23 and 24 keeping the same out of the consideration, can be said to be absolutely perverse in the eye of law ?"5
6. Heard Mr.D.P.Mohanty, learned Advocate for the appellants and Mr.R.P.Mohapatra, learned Additional Government Advocate.
7. Mr.D.P.Mohanty, learned Advocate for the appellants submitted that the plaintiffs filed the certified copy of the order-sheet in R.F.Case No.144/61 of 1959-60 and the Registered Lease Deed dated 25.6.1946. To prove their possession, the plaintiffs exhibited rent receipts granted by the ex-intermediary and the State. The rent receipts have presumptive value of possession. The rent receipts had been rejected on the ground that the same were granted without prejudice. The evidence of the plaintiff was discarded by the learned trial court on the ground that he had no personal knowledge regarding the lease granted by the ex-intermediary to his grandfather. It is highly improbable that the present P.W.1, who is the grand-son of the original lessee, should have the personal knowledge regarding the lease granted in favour of his grandfather or the rents paid by his grandfather. The authenticity of the documents was not challenged by the defendant. The documents are either public documents or registered documents obtained from the appropriate authority. P.W.2, an employee of the Office of the Tahasildar, proved five tenants ledger. i.e, Exts.18, 19, 20, 21 and
22. Exts.18, 19 and 20 relate to C.S. khata no.251. Exts. 21 & 22 relate to C.S.khata no.346 and C.S.Khata no.251 respectively. The tenants ledger were prepared in respect of different areas. The learned trial court rejected the tenants ledger on the ground that there were some overwriting in Exts.21 & 22. The ekpaida submitted by the ex-intermediary was not available in the office. Learned trial court has failed to appreciate the contents of the tenants ledger in its proper prospective. The areas mentioned in the tenants ledger have not been correctly mentioned in the impugned judgment. When the 6 ex-intermediary submits the ekpadia, the legal consequence is preparation of tenants ledger by the State Revenue authorities. The overwriting in question at few places are simple corrections of the amount of rent. The same has nothing to do with the genuineness or correctness of the same. The documents are public documents. No evidence had been adduced by the defendant to contradict the same. He further submitted the tenants ledger had been prepared several years back. P.W.2 cannot be expected to have personal knowledge about the contents of the tenants ledger. P.W.3, an Amin of the office of the Tahasildar, proved the reports of the Amin, which were submitted during the settlement operation, whereafter the draft record of right was published under Ext.10. The learned trial court rejected two exhibits i.e. Exts.23 & 24 on the ground that P.W.3 had no acquaintance with the signature of the Amin, who had submitted the report and the said witness was unable to say as to who was the A.S.O. who had prepared the order in Exts.23 & 24. Such a conclusion of the learned trial court is also erroneous. Exts.23 & 24 were prepared several years back i.e., in the year 1979. The witnesses had been examined in the suit in the year 2000-01. It is therefore improbable that a subsequent employee of the year 2001 should know the identity and signature of the Amin and the Asst. Settlement Officer, who prepared the official records several years back. Rejection of the official documents on such grounds by the learned trial court is not sustainable. He further contended that the learned trial court has simply discarded the deed of lease on the ground that the same has been executed and registered after 1.1.1946. Such a conclusion of the learned trial court is erroneous. Learned trial court has not at all referred to the provision contained in Section 5(i) of the O.E.Act Act. Section 5(i) does not automatically render a document illegal in the eye of law. No such measures had been taken so far as the lease of the plaintiffs are concerned.
7Therefore, in the circumstances, merely because the lease has been granted after 1.1.1946, the same cannot be discarded when the same is a registered one. The findings under Issue nos.4, 5 & 6 are contrary to law. The judgment of the learned appellate court suffers from vice of non-applicaton of mind.
8. Per contra, Mr.R.P.Mohapatra, learned A.G.A. submitted that the kissam of the disputed property is Anabadi. The lease deed was executed after 1.1.46 i.e., after the cut off date provided under the O.E.A.Act. In L.E.Case No.87 of 67, Ext.6, a direction was issued to prepare tenants ledger. The Tahasildar has no jurisdiction to issue such direction under the provisions of the Orissa Prevention of Land Encroachment Act,1972 ('OPLE Act'). The order is illegal. The plaintiffs applied for settlement of the land, which is contrary to the law laid down by this Court. In respect of the suit schedule lands described in schedule-D and C property, no document was produced.
9. Order 7 Rule 3 of the C.P.C. postulates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
10. Plot no.1926 is a big patch of land having an area Ac.41.77 dec.. The plaintiffs claim Ac.0.88 dec.. Similarly the plaintiffs claim Ac.0.30 dec. out of Ac.25.81 dec. from plot no.1937, Ac.030 dec. out of Ac.106.11 dec. from plot no.1964. The plaintiffs instituted the suit in respect of part plots. The description of the boundary has not been given. Thus, no effective decree can be passed.
811. In the R.O.R. the land has been recorded as gochar. The land was expressly set apart for the common use of the villagers. The question that arises for consideration is whether the plaintiffs claim on the assumption that the prohibition contained in the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act 1 of 1948) applied to the lease executed by the ex- intermediary in favour of the plaintiff and therefore no right was conferred on him. The expressions "communal land" has been defined in 2(a) of Orissa Act 1 of 1948 to means-
(i) In relation to estates governed by the Madras Estates Land Act, 1908 (Madras Act 1 of 1908) land of the description mentioned in Sub-
clause (a) or Sub-Clause (b) of Clause (16) of Section 3 of that Act : and
(ii) In relation to cases governed by the Orissa Tenancy Act, 1913 (B and O). Act 11 of 1913) lands recorded as gochar, rakshit or sarbasadharan in the record-of-rights of waste lands which are either expressly or impliedly set apart for the common one of the villagers whether recorded as such in the record-of-
rights;
12. Thus the land can be held to be "communal land" within the meaning and ambit of Sec.2(a) of the Orissa Act 1 of 1948. Resultantly, the prohibition contained in Section 3 of the said Act is attracted.
13. In a proceeding under Section 7 of the O.P.L.E.Act, jurisdiction of the Tahasildar is extremely limited. Section 7 deals with summery eviction, forfeiture and fine. Sub-Section (1) of Section provides that any person unauthorisedly occupying land for which he is liable to pay assessment under Section 4 shall be summarily evicted by the Tahasildar and any crop or other product raised on the land, any encroachments such as a building, other construction 9 or anything deposited thereon shall be liable to forfeiture. It further provides that in case of said encroachments, the Tahasildar shall give reasonable notice to remove the same. Sub-Section(2) of Section 7 empowered the Tahasildar to settle the land if the conditions enumerated in clause (a) and (b) are satisfied. Proviso to the said Section stipulates that the land recorded in the category mentioned therein shall not be settled. Sub-Section 2(a) provides that except the land specified in the proviso, the Tahasildar instead of evicting the person from the land shall settle the land with him, if the conditions enumerated therein are satisfied. Section 8(A) of the O.P.L.E.Act provides settlement of land in cases of encroachment for more than thirty years. While exercising the jurisdiction under Section 7 of the O.P.L.E.Act, the Tahasildar de hors its jurisdiction to settle the land under the O.E.A.Act. In the instant case, the Tahasildar travelled beyond its jurisdiction and settled the land under the O.E.A.Act in a proceeding under the O.P.L.E.Act. The order passed in R.F.Case No.144/61 of 1959-60 is void one.
14. The kissam of plot nos.3345, 3382, 3386, 3387 and 3388 is gochar. The gochar land vested in the State free from encumbrances. Both the courts below came to hold that the documents were antedated and fabricated. There were overwriting in the tenants ledger. Learned courts below rightly discarded the same.
15. In Ram Nath Mandal and others Vrs. Jojan Mandal and others, AIR 1964 Pat-1, the Full Bench of Patna held that under Section 117 of the T.P.Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under 10 Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint.
16. The rent receipts were granted without prejudice. This Court in the case of Magu Sahu Vrs. Bhramarbara Behera and others, 44 (1977) CLT 65 held that the words "without prejudice"
import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not by themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid. Acceptance of rent under such rent receipts cannot confer any tenancy interest. The substantial questions of law are answered accordingly.
17. In the result, the appeal, being devoid of merit, is dismissed. No costs.
...............................
Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 20th November, 2017/CRB 11