Orissa High Court
Madhusudan Sahu (Since Dead) & vs State Of Orissa on 7 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.393 of 2000
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Madhusudan Sahu (since dead) & .... Appellants
Others
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. G. Mukherji, Senior Advocate assisted by Mr. A. Mishra, Advocate.
For Respondent - Mr. A.R. Dash, AGA.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :19.02.2024:: Date of Judgment :07.05.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment.
2. The predecessor of the appellant Nos.1(a) to 1(d) i.e. Madhusudan Sahu was the sole plaintiff before the trial court in the suit vide O.S. No.17 of 1983-I and he was the respondent before the 1st Appellate Court in the 1st Appeal vide T.A. No.18 of 1994.
Page 1 of 42 SA No.393 of 2000
{{ 2 }} The respondent-State of this 2nd Appeal was the sole defendant before the trial court in the suit vide T.S. No.17 of 1983-I and it was the appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.18 of 1994.
The suit of the plaintiff (Madhusudan Sahu) vide O.S. No.17 of 1983-I was a suit for permanent injunction.
3. The suit property is Ac.0.460 decimals i.e. Sabik plot No.441 under Sabik Khata No.71 in Mouza Kundheibenta Sahi inside Puri Town at present Mouza-Jhadeswari in the district of Puri corresponding to Hal M.S Plot No.334 and M.S plot No.342, under Hal M.S Khata No.119.
As per the averments made in the plaint of the plaintiff, the suit properties were originally belonged to Dakhinaparswa Math and the same were the amrutmanohi properties of Lord Jagannath. The Mahant of Dakhin Parswa math i.e. Shri Jagannath Ramanuj Das was the marfatdar of Dakhin Parswamath in respect of the suit properties. The suit properties were lying fellow. So, for the benefit of the math, the then Mahnt Sri Jagannath Ramanuj Das inducted to the father of the plaintiff i.e Baidyanath Sahu as a tenant of the suit properties for horticultural purposes. The said tenancy of the father of the plaintiff over the suit properties was created through execution of a lease deed dated Page 2 of 42 SA No.393 of 2000 {{ 3 }} 10.10.1938 with delivery of possession and acceptance of rent from the father of the plaintiff i.e. Baidyanath Sahu. Since, the creation of such tenancy i.e. since 10.10.1938, the father of the plaintiff i.e. Baidyanath Sahu became an occupancy tenant in respect of the suit properties and planted several trees such as cashew and casuarina and converted the suit properties into a horticultural garden. Accordingly, the father of the plaintiff i.e. Baidyanath Sahu was paying rent of the suit properties to the Dakhinaparswa Math and he was obtaining the rent receipts. But, in course of time, the trees in the suit properties were cut and after the death of the father of the plaintiff i.e. after the death of Baidyanath Sahu, the plaintiff being the successor of his father, he (plaintiff) possessed the suit properties like his father and paid the rent of the same. As the suit properties were under the Ex-intermediary estate, then after the abolition of Ex-intermediary system, the suit properties vested with the Government on 18.03.1974 free from all encumbrances and thereafter, the tenancy of the plaintiff over the suit properties was acknowledged by the State of Orissa i.e. by the defendant and accordingly the plaintiff paid rent of the suit properties to the defendant (State of Orissa) as per Order dated 04.01.1982 passed in O.E.A Misc. Case No.276 of 1981. Page 3 of 42 SA No.393 of 2000
{{ 4 }} During Hal Settlement, the plaintiff applied before the settlement authorities by filing an objection case to record the suit properties in his name and that objection case was decided by the settlement authorities in his favour and a draft Khatian was issued in his favour for recording the suit properties in his name. As such, he (plaintiff) had/has been continuing his possession over the suit properties since the time of his father i.e. since 10.10.1938 to the knowledge of everybody including the defendant State. The suit properties are situated near the reserve police line, Puri. As, no permanent boundary wall was there around the suit properties, for which, the plaintiff wanted to raise boundary wall around the same. So, the plaintiff engaged some labourers and masons to construct boundary wall around the suit properties. But, suddenly on 04.09.1982, the Revenue Inspector came to the suit properties and prevented the labourers of the plaintiff from putting pillars for boundary wall and arrested the labourers of the plaintiff with the help of the town police.
Therefore, in order to file the suit against the defendant in respect of the suit properties for the relief of injunction, he (plaintiff) issued a statutory notice under Section 80 (1) of the CPC to the State (defendant) through his Advocate on 07.09.1982 and after receiving such notice, the Page 4 of 42 SA No.393 of 2000 {{ 5 }} State (defendant) through Deputy Superintendent of Police, Puri issued letters on dated 30.11.1982 and 14.12.1982 respectively to the plaintiff asking him to produce his papers in respect of the suit properties relating to his title and possession on the same and accordingly, the plaintiff produced all the documents in his favour including the final order of O.E.A Misc. Case No.276 of 1981, rent receipts and other connected papers and after seeing the said documents of the plaintiff, the Deputy Superintendent of Police was satisfied about the title and possession of the plaintiff over the suit properties and absence of title and possession of the defendant on the same, but in spite of that, the Reserve Inspector of Police threatened the plaintiff to arrest him, if, he (plaintiff) will construct boundary wall around the suit properties. So, in order to oust the plaintiff from the suit properties, the Revenue Inspector of Police came to the suit properties on 13.01.1983 with some labourers and tried to dig foundation inside the suit properties and also threatened the plaintiff to posses the same forcibly by dispossessing him (plaintiff), from the same. For which, the plaintiff filed the suit vide O.S. No.17 of 1983-I against the defendant (State) after serving statutory notice under Section 80 (1) of the CPC on the defendant praying for restraining the defendant (State) permanently from raising any construction on the suit properties or from making any Page 5 of 42 SA No.393 of 2000 {{ 6 }} interference in the possession of the plaintiff over the suit properties or from encroaching any portion of the suit properties forcibly along with other relief(s), to which, he (plaintiff) is entitled for.
4. Having been noticed from the Trial Court in the suit vide O.S. No.17 of 1983-I, the defendant-State contested the same by filing its written statement taking its stands inter alia therein that:
Mahant of Dakhina Parswa Math Shri Jahannath Ramanuj Das had not inducted to the father of the plaintiff i.e. Baidyanath Sahu as tenant in respect of the suit properties at any point of time. Neither the father of the plaintiff nor the plaintiff had/has possessed the suit properties. The Hal Settlement operation has not been finalized as yet.
Therefore, the question of recording the suit properties in the draft R.o.R in the name of the plaintiff does not arise. The plaintiff has not been threatened by the R.I. at any point of time.
The further case of the defendant was that, an Order, which was passed in O.E.A Case No.276 of 1981 in respect of the suit properties in favour of the plaintiff, the said order has been obtained by the plaintiff fraudulently by influencing the local Revenue Inspector. In fact, the plaintiff has no right, title, interest and possession over the suit Page 6 of 42 SA No.393 of 2000 {{ 7 }} properties, for which, the suit of the plaintiff is liable to be dismissed against the State (defendant).
5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 4 numbers of issues were framed by the Trial Court in the suit vide O.S. No.17 of 1983-I and the said issues are:
ISSUES
1. Is the suit maintainable in law?
2. Is the suit barred by limitation?
3. Has the plaintiff any right, title, interest or possession in respect of the suit property?
4. To what relief, if any, the plaintiff is entitled?
6. In order to substantiate the aforesaid relief i.e. permanent injunction sought for by the plaintiff against the defendant (State), he (plaintiff) examined altogether 2 numbers of witnesses from his side including him (plaintiff) as P.W.1 and relied upon series of documents vide Exts.1 to 7 on his behalf.
Though the defendant/State cross-examined the witnesses of the plaintiff, but, the defendant/State did not adduce any oral or documentary evidence from its side.
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue Nos.1,3 & 4 in favour of the plaintiff and against the defendant and Page 7 of 42 SA No.393 of 2000 {{ 8 }} basing upon the findings and observations made by the trial court in issue Nos.1,3 & 4 against the defendant, the trial court decreed the suit of the plaintiff vide O.S. No.17 of 1983-I on contest against the defendant (State) without cost as per its Judgment and Decree dated 01.10.1986 & 23.10.1986 respectively and restrained the defendant (State) permanently from raising any construction or from interfering in the possession of the plaintiff over the suit properties assigning the reasons that, the plaintiff has established that, his father was inducted as a tenant in respect of the suit properties in the year 1938 and he (plaintiff) has been possessing the suit properties since the time of his father i.e. since the year 1938 continuously and when the defendant (State) through its employees is trying to disposses the plaintiff from the suit properties forcibly, then, he (plaintiff) is entitled for the decree of permanent injunction against the defendant, because, the possession of the suit properties is with him (plaintiff) since 1938 and all the revenue documents of the suit properties are in his favour, for which, the plaintiff has right, title, interest and possession over the suit properties. Therefore, the suit of the plaintiff against the defendant (State) is maintainable under law and the plaintiff is entitled for the relief i.e. permanent injunction against the defendant. Page 8 of 42 SA No.393 of 2000
{{ 9 }} Eight years after the aforesaid Judgment and Decree dated 01.10.1986 and 23.10.1986 respectively passed by the trial court in O.S. No.17 of 1983-I in favour of the plaintiff against the defendant, the defendant challenged that Judgment and Decree dated 01.10.1986 and 23.10.1986 respectively passed in O.S. No.17 of 1983-I by preferring 1st Appeal under Section 96 of the CPC, 1908 vide T.A. No.18 of 1994 before the District Judge, Puri praying for condonation of delay in preferring that 1st Appeal.
8. After hearing from both the sides, the delay of 8 years in preferring that 1st Appeal vide T.A. No.18 of 1994 by the defendant-State was condoned subject to payment of cost of Rs.500/-, to which, the plaintiff challenged by filing a Civil Revision vide Civil Revision No.95 of 1996 before the Hon'ble High Court of Orissa.
In that Civil Revision, the amount of cost for condonation of delay was enhanced from Rs.500/- to Rs.15,000/-. Accordingly, after complying the direction of the Revisional Court passed in Civil Revision No.95 of 1996, the 1st Appeal of the defendant-State vide T.A. No.18 of 1994 was admitted for hearing.
In that 1st Appeal vide T.A No.18 of 1994, the defendant (State) (appellant in the 1st Appeal) filed two separate petitions i.e. one under Page 9 of 42 SA No.393 of 2000 {{ 10 }} Order 6, Rule 17 of the CPC for amendment of its W.S. and another under Order 41, Rule 27 of the CPC, 1908 for adducing additional evidence.
After hearing the 1st Appeal along with the aforesaid two petitions under Order 6 Rule 17 and under Order 41, Rule 27 of the CPC, 1908 from both the sides, the 1st Appellate Court allowed that two petitions/applications of the appellant-Defendant and set aside the Judgment and Decree passed by the Trial Court in O.S. No.17 of 1983-I in favour of the plaintiff and remitted back to that suit vide O.S. No.17 of 1983-I to the Trial Court for its fresh disposal by framing new issues.
9. On being aggrieved with the said Judgment of remand of the suit passed by the 1st Appellate Court in the Judgment and Decree passed in T.A. No.18 of 1994, the plaintiff preferred Misc. Appeal No.185 of 1997 under Order 43 Rule 1(u) of the CPC, 1908 before the Hon'ble High Court of Orissa against the defendant and after hearing from both the sides, that Misc. Appeal vide Misc. Appeal No.185 of 1997 of the plaintiff was allowed by the Hon'ble High Court of Orissa and directed the 1st Appellate Court to dispose of the 1st Appeal vide T.A. No.18 of 1994 afresh along with the two applications/petitions of the defendant under Order 6, Rule 17 and under Order 41, Rule 27 of the CPC. Page 10 of 42 SA No.393 of 2000
{{ 11 }} After remand of the 1st Appeal vide T.A. No.18 of 1994, the 1 st Appellate Court heard that 1st Appeal vide T.A. No.18 of 1994 afresh along with its two petitions under Order 6, Rule 17 of the CPC, 1908 and under Order 41 Rule 27 of the CPC, 1908 of the defendant (State) from both the sides.
10. After hearing, the 1st Appellate Court allowed the 1st Appeal vide T.A. No.18 of 1994 of the defendant as per its Judgment and Decree dated 10.08.2000 & 24.08.2000 respectively, but rejected both the applications/petitions of the defendant under Order 6, Rule 17 and under Order 41, Rule 27 of the CPC, 1908 and set aside the Judgment and Decree dated 01.10.1986 and 23.10.1986 respectively passed in T.S. No.17 of 1983-I by the trial court assigning the reasons that, "Ext.1 (lease deed of the year 1938) in favour of the father of the plaintiff i.e. Baidyanath Sahu in respect of the suit properties being an unregistered document, the same is not admissible in evidence, because, the contents thereof have not been proved and due to non-proving of the contents of that Ext.1, the said Ext.1 is not admissible under law for any purpose and the order of the Tahasildar passed in O.E.A. Case No.276 of 1981 in respect of the suit properties in favour of the plaintiff is without jurisdiction, because, Section 8(1) of the O.E.A Act does not contemplate Page 11 of 42 SA No.393 of 2000 {{ 12 }} for filing of any application and the rent receipts, those have been issued by the Government without prejudice in respect of the suit properties in favour of the plaintiff cannot confer any right of the plaintiff in the suit properties and when the Exts.1 to 4 have become inadmissible under law, for which, the draft R.o.R (Ext.5) of the suit properties in the Hal Settlement prepared by the Settlement Authorities in favour of the plaintiff has no recognition, as the said Ext.5 has been prepared on the basis of Exts.1,2,3 & 4 and the oral evidence adduced by the plaintiff in respect of his possession over the suit properties is vague, because he (plaintiff) has not examined any witness in respect of his possession over the suit properties and there is also no evidence concerning the delivery of possession of the suit properties in favour of the plaintiff."
11. On being aggrieved with the aforesaid Judgment and Decree dated 10.08.2000 & 24.08.2000 respectively passed by the 1 st Appellate Court in T.A. No.18 of 1994 in setting aside the Judgment & Decree dated 01.10.1986 and 23.10.1986 respectively passed by the trial court in T.S. No.17 of 1983-I in favour of the plaintiff, he (plaintiff) challenged the same by preferring this 2nd Appeal being the appellant against the defendant-State arraying the defendant (State) as respondent. Page 12 of 42 SA No.393 of 2000
{{ 13 }} When, during the pendency of this 2nd appeal, the appellant/plaintiff Madhusudan Sahu expired, then, his LRs were substituted in his place as appellant Nos.1(a) to 1(d).
12. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. i. Whether the learned lower appellate court is justified in excluding Ext.1 from consideration on the ground that, it does not bear the signature of the plaintiff or his father when no such objection was raised by the State when the document was admitted in evidence for marking the same as an Exhibit?
ii. Whether the finding of the learned lower appellate Court ignoring the order of the Tahasildar dated 04.01.1982 recognising the tenancy right of the plaintiff in Misc.
Case No.276 of 1981 is without jurisdiction in view of the provision of Section 39 of the O.E.A. Act?
13. I have already heard from the learned counsel for the appellant and learned Additional Government Advocate for the State/respondent.
14. In order to assail the impugned Judgment and Decree passed by the 1st Appellate Court in T.A. No.18 of 1994 and in support of the Judgment and Decree passed by the trial court in O.S. No.17 of 1983-I, the learned counsel for the appellant(plaintiff) relied upon the following decisions: Page 13 of 42 SA No.393 of 2000
{{ 14 }}
a) AIR 1961 Supreme Court 1655 (V 48 C 312):Javer Chand & others.
b) 1999 (II) OLR 319: Natabar Behera Vs. Batakrushna Das
c) 1992 (I) OLR 41: Smt. Basanti Kumari Sahu Vs. State of Orissa & Others
d) 1993 (I) OLR 4: Hiradhar Patel Vs. Lalindra Gand@Naik and Another.
e) AIR 1996 SC 906:State of Kerala Vs. M.K. Kunhikanan Nambiar Manjeri Manikoth, Naduvil (dead) & Others.
f) AIR 1996 SC 910:Mohan Lal (deceased) through his LRs Kachru & Others Vs. Mira Abdul Gaffar and another.
g) AIR 2011 Supreme Court 1140: Krishnadevi Malchand Kamathia & Others Vs. Bombay Environmental Action Group & Others.
h) AIR 2022 SC 5317: S. Ramchandra Rao Vs. S. Nagabhusand Rao & Others.
i) AIR 2016 SC 564:Sri Jagannath Temple Managing Committee Vs. Siddha Math & Others
15. On the contrary, in support of the Judgment and Decree passed by the 1st Appellate Court in T.A. No.18 of 1994, the learned Addl. Government Advocate for the State/defendant relied upon the following decisions:
a) AIR 1984 Ori. 88: Gouri Shankar Vs. State of Orissa.
b) AIR 1964 Pat 1:Rama Nath Mandal VS Jojan Mandal.
c) AIR 1955 SC 328: Sita Maharani & Others Vs. Chhedi Mahto & Others.(Para-13)
d) AIR 1946 PC 51: Rama Rattan Vs. Parma Nand.
e) 44 (1977) CLT 65: Magu Sahu Vs. Bhramarbara Behera.Page 14 of 42 SA No.393 of 2000
{{ 15 }}
f) 57(1984) CLT (1):Radharani Dibya Vs. Braja Mohan Biswal.
g) 2000(II) OLR 9:Union of India & Others Vs. Kathi Bewa & Others
h) (2008) 4 SCC 594:Anathula Sudhakar Vs. P. Buchi Reddy. (Paragraph No. 13.3, 14, 21 & 25).
i) 2024 SCC Online SC 169:Tehsildar, Urban Improvement Trust & Another Vs. Ganga Bai Menariya (Dead through LRS & Others)
j) 2000 (I) OLR 590: Gopal Patra Vs. Loknath Patra. (Paragraphs No. 6 to 10):
16. It is the case of the plaintiff that, the father of the plaintiff was inducted as a tenant of the suit properties through an unregistered lease deed dated 10.10.1938. That unregistered lease deed has been marked as Ext.1 on behalf of the plaintiff.
In Para Nos.29 & 30 of the Judgment and Decree passed by the 1 st Appellate Court in T.A.No.18 of 1994, the 1 st Appellate Court has held that, unregistered lease deed vide Ext.1 is not admissible in evidence for any purpose including for any collateral purpose assigning the reasons that, a valid lease deed is required to be adequately stamped under the Indian Stamp Act. The unregistered lease deed vide Ext.1 is an unstamped document purported to have been signed by the lessor only. A valid deed of lease has to be executed by both lessor and lessee and the same has to be registered, if the same is for agricultural purposes from year to year or from any time exceeding a year. Section 35 of the Indian Page 15 of 42 SA No.393 of 2000 {{ 16 }} Stamp Act prohibits admission in evidence of an unstamped instrument, which was required to be chargeable with stamp duty for any purpose. The same has been fortified in the ratio of the decision reported in A.I.R. 1946 Privy Council 51 (Rama Rattan Vs. Parmananda), wherein it has been held that, where an unstamped document is admitted in proof of some collateral matter, it is certainly admitted for that purpose, which Section 35 of the Indian Stamp Act has prohibited.
Therefore, according to the 1st Appellate Court, the unregistered lease deed vide Ext.1 relied by the plaintiff is not at all admissible in evidence as the contents thereof have not been proved. For which, it was held by the 1st Appellate Court that, the learned trial court has committed gross error in relying upon that document vide Ext.1 to uphold the plaintiff's claim of tenancy over the suit land. So, in the absence of registration and stamp duty and in the absence of proof of the contents of Ext.1, that document is not admissible in evidence for any collateral purpose also.
17. In order to assail the above findings and observations made by the 1st Appellate Court in Para Nos.29 and 30 of the Judgment and Decree passed in T.A. No.18 of 1994, the learned counsel for the appellant (plaintiff) argued that, Ext.1 is a document of more than 30 years old, Page 16 of 42 SA No.393 of 2000 {{ 17 }} which carries presumption of the correctness of its execution, because, it was produced from the proper custody and the same has the evidentiary value as per Section 90 of the Indian Evidence Act, 1872. In absence of any cogent evidence to disprove it, the findings of the learned 1st Appellate Court is not sustainable. Because, Ext.1 has been admitted into evidence and has been marked as Exhibit without any objection. It was also subjected to examination and cross-examination. Because, it is the settled principles of law that, once a document like Ext.1 has been admitted into evidence and marked as an Exhibit in the case and the same has been used by the parties in examination and cross examination of their witnesses, it is not open either to the trial court itself or to the court of Appeal or Revision to go behind that order.
18. In support of such argument, the learned counsel for the appellant (plaintiff) relied upon the ratio of the decision of the Apex Court reported in AIR 1961 Supreme Court 1655 (V 48 C 312): Javer Chand & Others Vs. Pukhraj Surana.
But, in support of the findings and observations made by the 1 st Appellate Court in Para Nos.29 and 30 of the Judgment passed in T.A. No.18 of 1994, regarding the inadmissibility of the unregistered lease deed dated 10.10.1938 vide Ext.1 in respect of the suit properties, the Page 17 of 42 SA No.393 of 2000 {{ 18 }} learned Addl. Govt. Advocate for the respondent (State) relied upon the decisions of the Hon'ble Courts and Apex Court reported in AIR 1964 Patna 1: Rama Nath Mandal Vs. Jojan Mandal, AIR 1955 SC 328 (Para No.13): Sita Maharani Vs. Chhedi Mahto, AIR 1984 Orissa 88:Gouri Shankar Vs. State, AIR 1946 P.C. 51: Rama Rattan Vs. Parma Nanda, 44 (1977) C.L.T 65, 57 (1984) C.L.T 1: Radharani Dibya Vs. Braja Mohan Biswal and 2000 (II) O.L.R. 9: United of India (UOI) & Others Vs. Kathi Bewa & Others.
As per the decision reported in AIR 1964 Patna 1 (Full Bench):
Rama Nath Mandal Vs. Jojan Mandal placing reliance in the decision reported in AIR 1955 SC 328 (Para No.13): Sita Maharani Vs. Chhedi Mahto it has been held that, "A lease for agricultural purposes is not necessary to be made by a written instrument. It may be effected by an oral agreement and when, so effected, no registration is required.
However, if the transaction is reduced into writing, then, in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, the registration would be required under Section 17 of the Registration Act, and, if unregistered, the lease will be inadmissible in evidence under Section 49 of the Registration Act and Page 18 of 42 SA No.393 of 2000 {{ 19 }} other evidence of its terms will be precluded under Section 91 of the Evidence Act."
19. On this aspect, by taking the ratios of the aforesaid two decisions of the Hon'ble Courts and Apex Court reported in AIR 1964 Patna 1 (Full Bench): Rama Nath Mandal Vs. Jojan Mandal & AIR 1955 SC 328 (Para No.13): Sita Maharani Vs. Chhedi Mahto into account, it has been held by the Hon'ble Courts in the ratio of the following decisions that, I. 2001 (1) OLR 208:Nrusingha Charan Samal & Another Vs. Kuntala Kumari Samal & Others. (Para No.8) Lease--Agricultural Land--"Hata Pata"--Agricultural land can be leased out orally by acceptance of rent and delivery of possession "Hata Pata" though not registered can be taken as evidencing oral lease.
II. 2019 (II) CLR 1130: Janhabi Dei & Another Vs. Shankhali Alias Krushna Panda (since dead) through LRs & Others. (Para No.12) T.P. Act, 1882, Section 117--Lease deed--Agricultural land-- Exempted from registration--Since under Section 117 of T.P. Act, the agricultural leases are excluded from operation of the Act, the provisions of Section 107 did not apply to it.
III. 2019 (II) OLR 289: Madan Mohan Sahoo Vs. State of Odisha & Another.
Registration Act, 1899--Section 17--Un-registration Prajapatta-- Where the value is more than Rs.100/---In view of the authoritative pronouncement of the full Bench decision in the case of Ram Nath Mandal, the same requires registration under Section 17 of the Registration Act.
IV. 29 (1963) CLT 428:Naban Bewa Vs. Nabakishore Samal (Para No.6).
T.P. Act, 1882, Section 117 and 107--Agricultural lease can be created orally and by delivery of possession and in order to confer any lese- hold right, a registered document is not essential. Page 19 of 42 SA No.393 of 2000
{{ 20 }} V. 2003 (I) OLR (NOC) 86:Panchu Samal Vs. Commissioner of Consolidation, Orissa, Cuttack & Others. (Para No.5). T.P. Act, 1882, Section 117--A lease for agricultural purpose is not necessary to be made by a written instrument-- It may be effected by an oral agreement--No registration is required.
VI. AIR 1979 Patna 106: Sardamoni Debi Vs. State of Bihar & Others.
Transfer of Property Act (4 of 1882), S. 117--'Agricultural Purpose'-- Test to determine--Settlement of tank and its embankment--Lessee using tank for rearing fish and growing vegetables on embankment-- Held, lease was for agricultural purposes.
VII. 2005 (2) CCC 239 (M.P): Atar Singh & Others Vs. Jiledar Singh & Others.
Section 117 & 107--Lease of agricultural land--Need not be registered--Agricultural leases are excluded from operation of the Act and thus provision of Section 107 of the Act do not apply to it. It is the case of the parties that, the unregistered lease deed vide Ext.1 was executed by the ex-intermediary in favour of the father of the plaintiff in respect of the suit properties for agricultural purposes and that Ext.1 has not been registered and there is no indication in that Ext.1 about its value.
When, it is the settled propositions of law that, a lease for agricultural purposes is exempted from registration and an agricultural tenancy can be created either orally or through delivery of possession and registration of that instrument is not compulsory, then, at this juncture, by applying such principles of law enunciated in the ratio of the above decisions, it can be held that, land can be leased out for an agricultural purpose either orally by acceptance of rent or by delivery of possession Page 20 of 42 SA No.393 of 2000 {{ 21 }} and if a lease deed concerning agricultural lease is not registered, the same can be taken as evidencing an oral lease.
Ext.3 is the Order of the Tahasildar-cum-O.E.A Collector in O.E.A. Case No.276 of 1981, in which, as per Section 8 (1) of the O.E.A. Act, the suit properties were settled in favour of the appellant/plaintiff and on the basis of such settlement, tenancy ledger in respect of the suit properties was opened in favour of the appellant (plaintiff) and after opening of the tenancy ledger of the suit properties in favour of the plaintiff, rent of the suit properties have been accepted by the State from the plaintiff as per Ext.4 and thereafter, during Hal Settlement operation, the draft R.o.R of the suit properties vide Ext.5 was prepared in favour of the plaintiff on the basis of Exts.1,2,3 and 4.
20. On the basis of the documents vide Exts.1, 2 series,3,4 and 5, the plaintiff has claimed his possession over the suit properties as the owner thereof.
The trial court had accepted the claim of the plaintiff on the basis of the documents vide Exts.1, 2 series,3,4 and 5. But, the 1st Appellate Court has negatived to the said findings of the trial court assigning the reasons in Para Nos.31 to 38 of the Judgment and Decree passed in T.A. No.18 of 1994 that, "when the suit properties were settled in favour of the plaintiff Page 21 of 42 SA No.393 of 2000 {{ 22 }} on the basis of the application made on behalf of the plaintiff in O.E.A. Case No.276 of 1981 as per Section 8(1) of the O.E.A Act, then, the order passed by the Tahasildar in response to such petition/application for initiation of O.E.A. Case No.276 of 1981 is nonest in the eye of law. Because, O.E.A Act makes no provision for an application and no enquiry is contemplated under the said Section 8(1) of the O.E.A. Act. Therefore, there was not any basis for initiation of O.E.A. Case No.276 of 1981 through the petition/application of the plaintiff. For which, the order stated to have been passed by the Tahasildar in O.E.A Case No.276 of 1981 on the basis of the petition/application of the plaintiff is nonest in the eye of law. When the said order passed in O.E.A Case No.276 of 1981 vide Ext.3 in favour of the plaintiff is nonest in the eye of law, then, the subsequent documents i.e. Ext.4 and Ext.5 (draft R.o.R.) in favour of the plaintiff on the basis of a nonest order vide Ext.3 passed in O.E.A. Case No.276 of 1981 are inadmissible under law. That apart, there is also no evidence in record to show that, who has received the rent and who had issued the Ext.2 series and Ext.4 and the acceptance of rent by an agent of the State is not sufficient to establish a tenancy, unless that agent was specially authorized to accept such rent and when the rent receipts were issued without prejudice, then, as per the settled law of the Hon'ble Page 22 of 42 SA No.393 of 2000 {{ 23 }} Courts, the said rent receipts have not any legal effect for creation of any right of the plaintiff over the suit properties. The acceptance of rents through such rent receipts cannot confer any tenancy interest in the suit properties in favour of the plaintiff.
When, the aforesaid documents vide Exts.1,2 series, 3 and 4 have no impact in respect of creation of tenancy right of the plaintiff over the suit properties, then, the preparation of the draft R.o.R of the suit properties in favour of the plaintiff during Hal settlement vide Ext.5 is inconsequential. In addition to that, the plaintiff has not examined any witness to testify regarding the creation of tenancy and acceptance of rent by the Matha. There is also no evidence regarding the delivery of possession of the suit land to the plaintiff's father, for which, the plaintiff has miserably failed to establish his claim to have acquired his tenancy over the suit land and to have exercised any incident of right, title, interest and possession over the suit land so as to be entitled to a decree for permanent injunction against the defendant. Therefore, the suit of the plaintiff is liable to fail"
On the basis of the above findings and observations, the 1st Appellate Court has set aside the Judgment and Decree passed by the trial court in T.S. No.17 of 1983-I. Page 23 of 42 SA No.393 of 2000 {{ 24 }}
21. In order to render the above findings and observations made by the 1st Appellate Court in Para Nos.31 to 38 of the Judgment and Decree unsustainable, the learned counsel for the appellant (plaintiff) relied upon the ratio of the decisions reported in 1989(1) OLR 158: Premananda Das Vrs. State of Orissa & Others, 1992 (1) OLR 41: Smt. Basanti Kumari Sahu Vrs. State of Orissa & Others, 1993 (1) OLR 4: Hiradhar Patel Vrs. Lalindra Gand @ Naik & Another & AIR 2011 (SC) 1140 (Para Nos.17 to 21): Krishna Malchand Kamathia & Others Vs. Bombay Environmental Action Group & Others.
It is no doubt true as per law that, under Section 8(1) of the O.E.A Act, a tenant is not required under law to file an application. But even for permitting continuity of the tenure of tenants, the appropriate authority has to be satisfied that the person concerned was really in possession of any holding as a tenant under the intermediary before the date of vesting, so that, he/she can be recognized as a tenant under the State. For which, though any petitioner/applicant may have misconceived the position in law and made an application under Section 8(1) of the O.E.A Act, the officer, i.e. the Tahasildar, should have considered the same on the administrative side with a view to satisfying himself, whether petitioner/applicant was a tenant under the State prior to vesting having Page 24 of 42 SA No.393 of 2000 {{ 25 }} regard to the provisions contained in Section 8(1) of the O.E.A. Act and the State shall be obliged to accept rent from him/her. In that situation, the misconceived application of the applicant under Section 8(1) of the O.E.A. Act cannot and shall not absolve the Tahasildar from proceeding in the right manner.
In this instant case, although as per Section 38-B of the O.E.A. Act, the order passed by the O.E.A. Collector vide Ext.3 passed in O.E.A. Case No.276 of 1981 under Section 8(1) of the O.E.A. Act, regarding the settlement of the suit properties in favour of the plaintiff on the basis of Ext.1 was revisable under law, but the State Government (defendant) in its wisdom did not get it annulled and as such, the State has accepted the same without challenging the same within prescribed period of limitation for its annulment. For which, that order of settlement of the suit properties in favour of the plaintiff has attained its finality. Therefore, the same is not opened to be questioned now. That too, the order passed by the O.E.A. Authority cannot be questioned before the Civil Court in view of the bar under Section 39 of the O.E.A. Act.
22. It is the settled propositions of law that, an order, even if not made in good faith, the same has legal consequences/forces. It bears no frank of invalidity upon its forehead, unless the necessary proceedings are taken Page 25 of 42 SA No.393 of 2000 {{ 26 }} under law to establish the cause of invalidity and to get it quashed or otherwise upset, the said order shall remain as effective.
Even if an order is void, it requires to be declared as void by a competent forum and it is not permissible for any person to ignore the same, merely because, in his opinion, that order is void. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds. Because, an order may be void for one purpose or for one person, it may not be so for another purpose or another person.
The officer, who collects the rent, is the agent/employee of the State. For which, the State Government (defendant) cannot say that, the rents in respect of the suit properties have not been collected from the plaintiff.
23. The legal affect of an unchallenged order of settlement of land under Section 8(1) of the O.E.A. Act concerning the suit properties like this suit/appeal at hand, as per Ext.3 has already been clarified by the Hon'ble Courts in the ratio of the following decisions:
I. C.W.R. 1970 (1) 450 & 36 (1970) CLT 1307: Ramakrushna Paramguru Vs. Murtunjaya Das & Others.(Para No.5).
"O.E.A Act, (1951)--(Orissa Act, 1 of 1952) Section 39--Settlement made in favour of the plaintiff under the Act--Any defect in the plaintiff's title prior to the settlement need not be enquired into. The admitted position is that, the settlement made in favour of the Page 26 of 42 SA No.393 of 2000 {{ 27 }} plaintiff under the Estates Abolition Act has become final. Any defect in the plaintiff's title prior to the settlement need not be enquired into now, particularly because the decision of the Collector under the Act is not open to question under Section 39 of the Estates Abolition Act. In the present suit that question is not open to be gone into again."
II. 2014 (2) OJR (200): State of Orissa & another Vs. Pravabati Das & Others.
Orissa Estates Abolition Act, 1951--Section 8(1)--Continuity of tenure of tenants--Order passed by the O.E.A. Collector-cum- Tahasildar, declaring the tenancy right of the predecessor of the respondent--That order has not been challenged in higher forum, and has reached in its finality--Application filed by the respondents under Section 15(b) of the Orissa Survey Settlement Act for correction of the R.O.R. in accordance with the order passed by the O.E.A. Authority has been remitted back to the Tahaildar--Order passed declaring the tenancy right of the predecessor of the respondents over the case land is still in force--It will not affect the revision preferred by the appellants under Section 38 of the O.E.A. Act--The matter has already been heard by the competent Ο.Ε.Λ. Authority in exercise of power under Section 38 of the O.E.A. Act and judgment is yet to be pronounced--Any recording made by the Tahasildar pursuant to the order passed under Section 15(b) of the Ο.Ε.Λ. Act shall be subject to the outcome of order passed by the Revisional Authority under Section 38 of the O.E.A. Act. III. 2014 (II) CLR 1217: Susanta Kumar Jena & Another Vs. Smt. Basanti Sethi & Others. (Para No.12) O.E.A. Act, 1951--Once the tenancy was created in favour of Kameswar and the State after vesting recognized his tenancy, right accrued in favour of respondents/Opposite Party Nos.1 and 2 to continue as recorded tenants and they were entitled to enjoy the disputed plot in question.
IV. 2018 (I) CLR 644: Krushna Chandra Biswal Vs. State of Orissa & Others.
T.P. Act, 1882, Section 117--Whether an agricultural tenancy can be created through an re-registered lease deed (hata patta) and acceptance of rent as well as salami by ex-land lord?--As per decision of Jagannath Nanda Vs. Bishnu Dalai reported in Vol.40, (1974) CLT 88 of Division Bench of this Hon'ble Court held that, under tenancy laws, a formal document is not necessary to create an Page 27 of 42 SA No.393 of 2000 {{ 28 }} agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent.
V. 1973 (2) C.W.R. 987: Duryodhan Das Vs. The Collector of Dhenkanal & Others & I.L.R. 1961 Cuttack, 595: Basiruddin Vs. State of Orissa.
O.E.A. Act, 1951--Once a patta is granted and rent is collected, tenancy right create in favour of the grantee and while government is the landlord and the grantee becomes a tenant under the ordinary tenancy law, it is no more open to the Government in exercise of the powers of a grantor to withdraw from the lease.
VI. 1992 (II) OLR 529: Manmohan Rout (after him) Sundari Devi & Others Vs. State of Orissa & Others (Para No.3). O.E.A. Act, 1951--When undisputedly petitioners' names were included in the Tenant's Ledger by the revenue authorities and rent was accepted from them, there cannot be any manner of doubt that, the petitioners were accepted as tenants under the State Government and that right cannot be taken away in any manner, by any entry in the R.o.R, therefore, the petitioners' right which they acquired by virtue of acceptance of rent from them by revenue authority under Section 8(1) of the Orissa Estates Abolition Act cannot be whittled down in any manner.
VII. 37 (1971) CLT 379: Dhruba Charan Sahu Vs. State of Orissa & Others (Para No.2).
Under the provisions of the Orissa Tenancy Act, the petitioner acquired a tenant's right in the land, because, it is well settled that, under the Orissa Tenancy Act, a tenant can be inducted to a holding by mere acceptance of rent. In which case, he acquires the status of a tenant. The fact that, the land in question belonged to Government and that the landlord is the Government does not make any difference so far as the incidents of tenancy are concerned. That being the position, the Government cannot by a subsequent executive order extinguish the right, which the petitioner has acquired in the land and much less can they forcibly enter on the land. VIII. 109 (2010) CLT 639: Rabindra Kumar Das & Others Vs. The Commissioner, Settlement & Consolidation & Others. (Para No.7) Document--Tenancy ledger prepared by responsible authorities of the State & State being the custodian of the said document-- Manipulation in the tenancy ledger to be established with cogent evidence in competent court.
Page 28 of 42 SA No.393 of 2000
{{ 29 }} IX. 1992 (I) OLR 41 (Full Bench): Smt. Basanti Kumari Sahu Vs. State of Orissa & Others. (Para Nos.7 to 11).
O.E.A. Act, 1951, Section 8(1)--Under the Act, tenancy rights did not vest in the State--After vesting tenant continues as a tenant--The State as landlord is entitled to collect rent--The Tahasildar collects rent as agent of the landlord-Government--He has no right to settle the land with the tenant--Such settlement is without jurisdiction-- When the tenant applies to the Tahasildar with application purporting to be under Section 8 (1) of the O.E.A. Act, the Tahasildar May, for his satisfaction, make enquiry as to the records if he is tenant--This is administrative in nature. X. 67 (1989) C.L.T. 548: Premananda Das Vs. State of Orissa & Others. (Para No.4).
O.E.A. Act, 1951--Section 8(1)--It is no doubt true that under Section 8(1) of the O.E.A. Act, a tenant is not required to file an application. But, even for permitting continuity of the tenure of tenants, the appropriate authority has to be satisfied that, the person concerned was really in possession of any holding as a tenant under the intermediary before the date of vesting, so that he can be recognized as a tenant under the State.
XI. 38 (1971) CLT 225: Jogendranath Mohanty & Another Vs. Jagannath Mohanty & Others. (Para Nos.7 and 8) O.E.A. Act, 1951, Sections 6,7 & 8A--Land has been settled in favour of the plaintiff by the Government after abolition of intermediary interest--Title accrues independent of the consideration of previous title over the land.
When the Intermediary interest in the present case was abolished, the previously existing rights of the intermediaries with whomsoever it rested came to an end, by the settlement, the plaintiffs must be deemed to have acquired a new and independent title which is not in any manner connected with or dependent on passing of title or otherwise that might have occurred. Thus, irrespective of the defects that might have existed in the plaintiffs' title to the suit land prior to the date of abolition, they have acquired a valid title by virtue of the settlement obtained from the State Government. Orissa Estates Abolition Act, 1951--Section 39--Defendant did not challenge the order of the Collector settling land in favour of the plaintiff--Questioning the validity of such Order is a bar in the Civil Suit.
Page 29 of 42 SA No.393 of 2000
{{ 30 }} The defendant has not challenged the validity of the order or the jurisdiction of the Collector to pass the same on the ground that in enquiring into the claim of passing the order the mandatory provisions of the procedure have not been complied with, Section 39 of the Act is a bar to questioning the validity of the order settling the land on the plaintiffs by determining the fair and equitable rent under Section 8A of the O.E.A. Act.
XII. 1992 (II) OLR 529: Manmohan Rout (and after him) Sundari Devi & Others Vs. State of Orissa & Others. Section 8 (1) of the O.E.A. Act--Name entered in Tenants' ledger and the rent has been accepted-- No document of lease is necessary for agricultural lease--Acceptance of rent creates tenancy right. XIII. 2004 (II) OLR 528: Choudhury Balaram Dash Vs. The Commissioner, Consolidation, Orissa & Others. O.E.A. Act, 1951--Section 6 and 7--When the land vested with the State Government free from all encumbrances in consonance with the O.E.A. Act--After vesting, the lands have been settled in favour of the petitioner under the O.E.A. Act and the record of rights were prepared in his favour--Order not challenged by the O.P. and the same has attained finality--The order being a valid one, the Consolidation Authorities are bound by the said order.
24. Here in this suit at hand, when it is the undisputed case of the parties that, the suit properties have been settled in favour of the plaintiff by the OEA Collector, i.e. the Tahasildar in O.E.A. Case No.276 of 1981 as per Ext.3 and on the basis of such settlement of the suit properties in favor of the plaintiff, the tenancy ledger of the suit properties was opened by the Government in the name of the plaintiff and thereafter the rents have been collected from him as per Ext.4 on the basis of the said tenancy ledger in favour of the plaintiff in respect of the suit properties and when, the defendant (State) has not challenged that order of settlement of the Page 30 of 42 SA No.393 of 2000 {{ 31 }} suit properties as per Ext.3 in favour of the plaintiff before any higher forums/authorities under O.E.A. Act and when, after settlement of the suit properties in favour of the plaintiff, the State has accepted the plaintiff as tenant of the suit properties directly under it by accepting the rents from him and when as per law, no formal document is necessary for creation of an agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent and when, as per the discussions and observations made above, the unregistered lease deed vide Ext.1 has not become inadmissible under law, because, there is no material in the record on behalf of the defendant (State) to show that, the value of that Ext.1 was more than Rs.100/- and when the documents vide Exts.1 to 5 are showing about the possession of the plaintiff over the suit properties since the time of his father, then, at this juncture, even if the Ext.1 is not registered, the same also can be taken as evidencing oral lease of the suit properties.
So, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the plaintiff is in possession over the suit properties as the tenant of the same under the defendant (State) and his tenancy has been accepted by the defendant (State). For which, the decisions relied by the respondent/defendant/State indicated above in Page 31 of 42 SA No.393 of 2000 {{ 32 }} Para No.15 of this Judgment have become inapplicable to the suit/appeal at hand being quite distinguishable from the facts of the suit as discussed above.
25. Learned Addl. Government Advocate for the defendant (State) has also argued to make the suit for injunction simpliciter vide T.S. No.17 of 1983-I filed by the plaintiff against the defendant (State) in respect of the suit properties as not maintainable, on the ground that, when from the very beginning i.e. starting from its written statement, the defendant (State) has disputed the title of the plaintiff over the suit land, for which, it was required for the plaintiff to seek the relief of declaration as per the proviso of Section 34 of Specific Relief Act, 1963 and in absence of declaration of title, the suit of the plaintiff is not maintainable under law.
In support of his aforesaid contention, the learned Addl. Government Advocate relied upon the ratio of the decision of the Apex Court reported in 2008 (4) SCC 594: Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs & Ors.
26. When, as per the discussions and observations made above, it has already been held that, the tenancy of the plaintiff over the suit properties has already been accepted by the defendant/State as per law through documents, then, at this juncture, by applying the principles of law Page 32 of 42 SA No.393 of 2000 {{ 33 }} enunciated by the Apex Court in the above decision relied by the defendant/State, it is held that, the suit for injunction vide O.S. No.17 of 1983-I simpliciter filed by the plaintiff in respect of the suit properties against the defendant (State) for permanent injunction is maintainable, because, his title over the suit properties is not under cloud as per law.
When there is a threat to the possession of the plaintiff over the suit properties by the defendant (State), then, the plaintiff has right to sue for injunction simpliciter against the defendant/State without praying for declaration of title.
Therefore, it cannot be held that, the suit of the plaintiff for injunction simpliciter is not maintainable under law without the prayer for declaration of title.
So far as the Misc. Case No.9 of 2018 under Order 6, Rule 17 of the CPC, 1908 filed by the respondent/State/defendant for amendment of its written statement and Misc. Case Nos.10 of 2018 and 81 of 2018 under Order 41 Rule 27 of the CPC for adducing additional evidence as per Annexures D,E,F & G are concerned, It appears from the Para Nos.18 to 24 of the Judgment of the 1 st Appellate Court in T.A. Nos.18 of 1994 that, the State (defendant) being the appellant in the said T.A. No.18 of 1994 had filed the same nature of Page 33 of 42 SA No.393 of 2000 {{ 34 }} petitions under Order 6, Rule 17 and Order 41 Rule 27 of the CPC before the 1st Appellate Court praying in that T.A. No.18 of 1994 for amendment of the plaint and for adducing additional evidence making the same prayers, those have been made in the present Misc. Cases vide Misc. Case Nos.9,10,81 of 2018.
In the above Misc. Cases vide Misc. Case Nos.9,10 & 81 of 2018, the appellant (State) has prayed for amendment of the written statement in order to insert the matters relating to the acquisition of the suit land through L.A. Case No.2 of 1963 and for adducing additional evidence through the documents relating to the L.A. Case No.2 of 1963.
After hearing the same prayers of the defendant/State, the 1st Appellate Court had rejected both the petitions under Order 6, Rule 17 and under Order 41, Rule 27 of the CPC of the appellant/State/defendant assigning the reasons in Para Nos.23 and 24 in the Judgment of the 1st Appeal vide T.A. No.18 of 1994 that, "none of the documents relating to L.A. Case No.2 of 1963 attached with the petitions go to show about the acquisition of suit land by the Government in L.A. Case No.2 of 1963. Because, the said documents do not contain any notification under Section 4 or declaration under Section 6 of the L.A. Act, 1894 with reference to the suit plot. The said petitions under Order 6, Rule 17 and Page 34 of 42 SA No.393 of 2000 {{ 35 }} Order 41, Rule 27 of the CPC have been filed by the defendant (State) after 15 years from the date of passing of the Judgment and Decree by the Trial Court in the suit vide T.S. No.17 of 1984-I. The defendant (State) is not diligent to produce materials, to support its plea contained in the proposed amendment. For which, the petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC filed by the appellant (State) were found to be without merit and the 1st Appeal vide T.A. No.18 of 1994 can be disposed of effectively on merit on the basis of the materials available on record."
27. As per the provisions of law envisaged under Order 41, Rule 22 of the CPC, the findings and observations made by the 1st Appellate Court in Para Nos.23 & 24 in T.A. No.18 of 1994 concerning the rejection of the applications of the State (defendant) under Order 6, Rule 17 and Order 41, Rule 27 of the CPC could have been challenged by the State (defendant) through cross objection in this 2nd appeal, but, the defendant (State) has not done so.
As per law, the State (defendant/respondent) without preferring cross objection can also challenge such findings of the 1st Appellate Court regarding the rejection of its petitions under Order 6, Rule 17 and Order Page 35 of 42 SA No.393 of 2000 {{ 36 }} 41, Rule 27 of the CPC during argument of the appeal without filing cross objection for the same.
When the right of filling cross objection in the 2nd appeal was available for the State, but instead of availing such right to challenge the findings and observations made by the 1st Appellate Court in rejecting its petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC, the defendant (State) has filed the same nature of petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC through Misc. Case Nos.9,10 & 81 of 2018, again in this 2nd Appeal, then, the above 3 Misc. Cases of the State/defendant are not entertainable under law.
In spite of the non-maintainability of the Misc. Case Nos.9,10 & 81 of 2018 of the respondent/State, the respondent/State/defendant is not precluded under law to challenge the findings and observations made by the 1st Appellate Court concerning the rejection of its petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC during the course of arguments of this 2nd Appeal. For which, the learned Addl. Government Advocate for the State/respondent argued for upsetting the findings of the 1st Appellate Court concerning the rejection of its petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC by the 1st Appellate Court. Page 36 of 42 SA No.393 of 2000
{{ 37 }} The law concerning amendment of the written statement as prayed for by the defendant (State) in an appeal has already been clarified in the ratio of the following decisions of the Apex Court and Hon'ble Courts:
I. 2017 AIR SC 1072:Satish Kumar Gupta Vs. State of Haryana & Others.
CPC, 1908, Order 41 Rule 27--Additional evidence--Land acquisition proceedings--Neither Trial Court refused to receive the evidence nor it can be said that evidence sought to be adduced was not available despite the exercise of due diligence--Evidence not necessary to pronounce the judgment--Additional evidence cannot be permitted to fill the lacuna or to patch up the weak points in the case--Impugned order of High Court permitting additional evidence order of remand, set aside. II. 2018 (Suppl.) Civil Court Cases 460 (H.P.):Shri Moti Ram Vs. Shri Ses Ram & Others.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate stage--Additional evidence which plaintiff intends to produce on record is not required by this Court for purpose of adjudication of case--Incidentally, it is not the case of plaintiff that either of Courts below refused to admit evidence which is now intended to be produced by way of application--Even, said documents were in the knowledge of plaintiff--No explanation was given for the same--Present application is nothing but an attempt to place on record said documents which plaintiff omitted to do so and to fill up lacunae--Conditions of Order 41, Rule 27 CPC not fulfilled-- Application dismissed.
III. 2017 (8) All. DJ 498: Latif Khan & Another Vs. Civil Judge, S.D., Bulandshahar & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate stage--Documents sought to be produced by way of additional evidence part of public record--However, application of applicant is completely silent as to when applicant has derived knowledge of documents--Moreover, if those documents were part of public record, applicant by exercising due diligence he could have been well aware of documents even before institution of suit--Plea of applicant being illiterate does not satisfy requirement to admit the same--Application rightly rejected.Page 37 of 42 SA No.393 of 2000
{{ 38 }} IV. 2019 AIR CC 3265 & 2019 (3) Madrass WN (Civil) 6:M. Manimegalai & Another Vs. Chellammal & Another. Additional evidence at appellate stage--Documents which defendants propose to mark are in no way connected with suit property--Such documents are irrelevant documents and not material to facts in issue in the case--Even there is no pleading in written statement regarding such documents--No reasons were substantiated by defendants for not marking said documents during trial process, which were very much available even during the year 2007--Defendants have not stated in their affidavit as to how documents help them--Application rightly rejected. V. 2016 (2) Civil Court Cases 607 (Allahabad):Pramod Urf Raju & Others Vs. State of U.P. & Others.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate Stage--If evidence was already available with appellants but was not filed knowingly, such evidences cannot be accepted in appeal. VI. 2015 (1) Civil Court Cases 200 (Allhabad): Smt. Ganga Devi (dead) Vs. Sri Bhagwan Dass & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate Stage--Mere discovery of fresh evidence subsequent to decision of lower court is not a ground for its admission in appeal, unless appellate court requires that, evidence to enable it to pronounce judgment or for any other substantial cause--Additional evidence should not be permitted at appellate stage to enable a party to remove certain lacunae and to fill in gaps.
VII. 2017 (Supp.) Civil Court Cases 141 (M.P.):Smt. Ramkuriya Bai Vs. Smt. Kachra Bai (dead) & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate Stage--In the present case it is not the situation that Court cannot pronounce Judgment without additional evidence--Application rightly rejected.
VIII. AIR 2012 (Madras) 269: S. Sornam Vs. N. Selvaraj.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate Stage-- Production of additional documents--First appellate Court has discussed the merits of document sought to be produced and only after coming to note that all documents are in no way relevant to the case of defendant while dismissing I.A., dismissed the appeal also--Reasoning given by First Appellate Court of disposing both I.As are integral part of impugned Page 38 of 42 SA No.393 of 2000 {{ 39 }} Judgment--Held, no prejudice caused to appellant--No error whatsoever can be find fault with--Appeal dismissed. IX. 2009 (4) Civil Court Cases 057 (P & H): M/s. General Electronics Vs. Amrik Singh.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate Stage--Documents totally irrelevant--Application rejected. X. 2009 (2) Civil Court Cases 153 (P & H): Baljinder Kaur Vs. Rajesh Kumar.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate Stage--Evidence within knowledge not produced in the trial court--Order dismissing application, upheld. XI. 2012 AIR CC 2809 & 2012 (10) Law Digital.in-182 (Patna):
Rajendra Pd. Vs. Ajit Kr. Singh.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate Stage--Evidence already on record sufficient for decision-- Additional evidence not decisive and conclusive in character--If allowed it will prolong litigation--Additional evidence, not allowed.
28. Here in this suit at hand, the fact finding court i.e. the 1 st Appellate Court after taking the petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC of the defendant/State along with the proposed documents sought to be introduced as an additional evidence into account has held that, the defendant/State is trying to bring some documents relating to the L.A. Case No.2 of 1963 into the record fifteen years after the Judgment passed by the trial court, which is not permissible under law and the said documents have no nexus/connection with the suit land and the defendant/State having the said documents under its possession had not filed the same during trial deliberately.
Page 39 of 42 SA No.393 of 2000
{{ 40 }} When, the records of L.A. Case No.2 of 1963 were obviously under the custody of the defendant-State and when as per judicial notice, the defendant-State was fully aware about such documents, but in spite of being fully aware about the same, the defendant/State had not produced that documents before the trial court during the trial of the suit deliberately and when, the evidence in the record are sufficient for the effective adjudication of this 2nd Appeal, then, at this juncture, the rejection to the petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC of the defendant/State by the 1st Appellate Court as per its findings in Para Nos.23 and 24 of the Judgment of T.A. No.18 of 1994 cannot be held unreasonable.
29. Therefore, the findings and observations made by the 1 st Appellate Court in Para Nos.23 and 24 of T.A. No.18 of 1994 in rejecting the petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC of the defendant (State) have become acceptable under law and Misc. Case Nos.9,10 & 81 of 2018 filed by the respondent for amendment of the written statement as well as for adducing additional evidence are dismissed/rejected and accordingly, the above 3 Misc. Cases vide Misc. Case Nos.9,10 & 81 of 2018 filed by the respondent/defendant are disposed of finally.
Page 40 of 42 SA No.393 of 2000
{{ 41 }} The suit of the plaintiff (appellant) vide O.S. No.17 of 1983-I before the trial court was a suit for permanent injunction simpliciter against the State (defendant). It is very fundamental in civil law that, possession of the suit land is the main consideration, while considering the suit for injunction simpliciter filed by the plaintiff like the present suit at hand.
As per the discussions and observations made above, it has already been held that, the plaintiff is in possession over the suit properties, but the defendant (State) is not in possession over the same.
When, the plaintiff has sought for injunction against the defendant (State) in order to prevent the defendant/State from interfering in his possession over the suit properties, as the defendant (State) is trying to interfere in his possession over the suit properties, then, at this juncture, the plaintiff is lawfully entitled for the decree i.e. permanent injunction against the defendant (State).
When the Trial Court in its Judgment and Decree passed in O.S. No.17 of 1983-I had restrained the State (defendant) permanently from raising any construction or from interfering into the possession of the plaintiff over the suit schedule properties, then, at this juncture, the 1st Appellate Court should not have reversed (set aside) the said Judgment Page 41 of 42 SA No.393 of 2000 {{ 42 }} and Decree passed by the trial court in favour of the plaintiff in O.S. No.17 of 1983-I through the Judgment and Decree passed in T.A. No.18 of 1994. For which, the Judgment and Decree passed by the 1 st Appellate Court in T.A. No.18 of 1994 cannot be sustainable under law.
30. So, there is justification under law for making interference with the Judgment and Decree passed by the 1st Appellate Court in T.A. No.18 of 1994 through this 2nd Appeal filed by the appellant (plaintiff).
31. Therefore, there is merit in the 2nd Appeal filed by the appellant (plaintiff). The same must succeed.
32. In result, the 2nd Appeal filed by the appellant (plaintiff) is allowed on contest, but without cost.
The Judgment and decree passed by the 1st Appellate Court in T.A. No.18 of 1994 are set aside.
33. The Judgment and Decree passed by the Trial Court in O.S. No.17 of 1983-I are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:07.05.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 13-May-2024 18:15:19 Page 42 of 42 SA No.393 of 2000