Orissa High Court
Sambhuram Mandal vs Collector Kendrapara And Others on 17 April, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.277 of 1999
From the judgment and decree dated 10.2.1999 and 20.2.1999
respectively passed by Sri S.P. Raju, learned Addl. District Judge,
Kendrapara in T.A. No.1 of 1992 confirming the judgment and
decree dated 31.8.1991 and 13.9.1991 respectively passed by Sri
R.N. Mishra, learned Addl. Munsif, Kendrapara in T.S. No.537 of
1986.
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Sambhuram Mandal .................. Appellant
---versus--
Collector, Kendrapara and others .................. Respondents
For Appellant : Mr. Budhiram Das, Advocate
For Respondents : Miss Samapika Mishra, A.S.C.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :07.04.2017 │ Date of Judgment: 17.04.2017
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Dr. A.K. Rath, J.This appeal is by the plaintiff.
02. The case of the plaintiff is that he is a Bengali, migrated from Medinapur, West Bengal with his family and settled at Jamboo since 1949 along with many other persons with the verbal permission of the employees of Kujanga estate. After the introduction of Act-1 of 1948, the Kujanga estate authority could not lease out the suit land to the plaintiff and others. Pursuant to the 2 report dated 16.04.1949 of the Collector, Cuttack, enquiry by the Asst. Conservator of Estate dated 17.1.50 and final report of the Collector, Cuttack, the Govt. released Ac.200.00 land for reclamation and lease out the same by ex-intermediary. Thereafter, the ex-intermediary on consideration of the application of the plaintiff in Lease Case No.125 of 1355-56 leased out the suit land in his favour for cultivation on payment of Rs.16/13/- and pathakar rent Rs.1/1/3 per year. The suit land was demarcated by an Amin. The plaintiff is in peaceful possession of the same and used to pay rent and obtain rent receipts. After vesting, the rent roll was submitted by the ex-intermediary to the State in favour of the plaintiff in the year 1952. Since 1952 till date the Revenue Inspector received rent. The settlement authority recorded the name of the plaintiff in yadast. A certificate case was filed by the Tahasildar, Marshaghai demanding penalty in encroachment case. As the suit land was attached in the said case, he was compelled to pay the outstanding dues. After payment, he came to know about the Encroachment Case No.1415 of 68-69 was initiated and penalty was assessed. For realization of the outstanding dues, the Certificate Case No.262 of 1985 was started. He has acquired occupancy right over the suit land. He is a settled raiyat of the village. Thus the encroachment proceeding and certificate case are null and void. With this factual scenario, the plaintiff filed the suit seeking 3 declaration to confirm the occupancy right and for a direction to the defendant no.3 to adjust the dues collected from him towards rent after fixing the rent.
03. The defendant no.2 and 3 filed a written statement denying the assertions made in the plaint. The case of the defendants is that after Orissa Estate Abolition Act came into force the estate vested in 1952. No ekpadia was submitted by the ex- landlord in favour of the plaintiff. In the ROR published in the year 1968, the suit land was recorded as Rakhita Anabadi under khata no.169. Thereafter, Encroachment Case No.1415/68-69 was initiated against the plaintiff. The plaintiff admitted the encroachment. He paid penalty of Rs.457.84. The plaintiff has no title over the suit land.
04. On the interse pleadings of the parties, learned trial court struck seven issues. To substantiate the case, the plaintiff had examined seven witnesses and on his behalf twelve documents had been exhibited. No evidence was adduced by the defendants.
05. Learned trial court on scrutiny of the rent receipts, vide Ext.4 and 4(a), came to hold that the date of payment of the rent is not clear. The rent was either paid on 2.5.48 or 2.5.58. The rent receipts were printed on 14.12.51. Thus it was impossible to grant a receipt for the rent of the year 1948. The estate vested in the State 4 much prior to 1952. Thus no rent could be paid to the ex-landlord on 2.5.58. With regard to receipts vide Ext.4(a), it held that the date of payment of rent has been mentioned as 21.3.50 whereas the receipt was printed on 14.12.51. It held that receipts are not genuine and the same are fabricated for the purpose of the case. The plaintiff failed to prove the possession of the suit land. In Encroachment Case No.1415 of 1968-69, he has paid penalty vide Ext.8. The plaintiff was not an occupancy raiyat. Held so, learned trial court dismissed the suit. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Kendrapara in T.A. No.1 of 1992, which was eventually dismissed.
06. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 2 of the memorandum of appeal. The same are:
"1. Whether the plaintiff has proved his title by virtue of adverse possession in respect of the suit land by possessing the same since 1952 in view of M.S. Record of Right (ext.11), Salami deposit rent receipts (Ext.4 and 4/a), admitted encroachment case of the year 1968-69 rent receipts (Ext.8 to 8-C), notice in encroachment case (Ext.10 to 10-b) and voter list (Ext.13) coupled with the consistent evidence of all the P.Ws. as against which no evidence has been adduced by the defendants ?
2. Whether publication of Record of right and mere filing an encroachment case without eviction warrants the running of adverse possession ?"5
07. Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C.Pati, learned counsel for the appellant and Miss S. Mishra, learned counsel for the respondents.
08. Mr. Das, learned counsel for the appellant submitted that the plaintiff originally belonged to Medinapur, West Bengal. He settled at Jamboo with the permission of the employees of the Kujanga estate since 1949. He used to pay rent to the ex- intermediary. The land was vested in the State of Orissa. Ekpadia was submitted by the ex-intermediary to the plaintiff. The plaintiff also paid rent after vesting. In the yadast, the settlement authority recorded the land in the name of the plaintiff. The initiation of encroachment case as well as certificate proceeding is bad in law. The same could not have been affected on the right of the plaintiff since the plaintiff is an occupancy raiyat of the village.
09. Per contra, Miss Mishra, learned counsel for the respondents submitted that originally the land belonged to Kujanga estate. The estate vested in 1952. No ekpadia was submitted in favour of the plaintiff. In the settlement ROR published in the year 1966, the suit land was recorded in favour of the State under Rakhita Anabadi khata. In the encroachment case, the plaintiff admitted encroachment and paid penalty. The plaintiff is an encroacher. He has no right, title and interest over the suit land. 6
10. Originally the land belonged to Kujanga estate. The estate vested in the State free from all encumbrances after coming into force of the Orissa Estate Abolition Act. The plaintiff asserted that he was migrated from Medinapur and settled in the village Jamboo with the permission of the ex-intermediary. According to the plaintiff, he paid rent to the ex-intermediary and is a settled raiyat. On scrutiny of the rent receipts vide Ext.4 and 4/a, learned trial court came to hold that the same are fabricated. Finding of the learned trial court cannot be said to be perverse. In Encroachment Case No.1415 of 1968-69, the plaintiff admitted encroachment and paid penalty. The plaintiff admits the title of the State. He is a rank tresspasser. The substantial questions of law are answered accordingly.
11. In the result, the appeal, devoid of merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 17th April, 2017/Basanta