Orissa High Court
Biswanath Choudhury .Dead. His L.Rs ... vs State Of Orissa And Another on 4 August, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.22 of 1995
From a judgment and decree dated 26.9.1994 and 30.9.1994
respectively passed by Mr.S.K.Dhal, learned Additional District
Judge, Bhadrak in Title Appeal No.22 of 1989/58 of 1989 confirming
the judgment and decree dated 28.2.1989 and 8.3.1989 passed by
the learned Civil Judge (Jr.Division), Bhadrak in T.S.No.314 of 1986-
I.
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Biswanath Choudhury (Dead) his L.Rs
Gitarani Choudhury and others .... Appellants
Versus
State of Orissa and another .... Respondents
For Appellants -- Mr.Alok Kumar Mohanty,
Advocate
For Respondents -- Mr.Swayambhu Mishra,
A.S.C.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 28.07.2017 & Date of Judgment: 04.08.2017
Dr.A.K.RATH, J.This is a plaintiffs' appeal against confirming judgment in a suit for declaration that the land register prepared by the consolidation authority is wrong, permanent and mandatory injunction.
22. The predecessors in interest of the appellants as plaintiffs filed the suit. The case of the plaintiffs is that the suit land originally belonged to Ex-landlord Heramba Prasad Brahma alias Ray. The suit land was "Nijdakhali Bagayat land". The Ex-landlord had leased out the same in favour of one Dari Dibya on 10.6.1937 and issued Hat Patta to her. Dari Dibya was in possession of the land. She used to pay rent. But then the Ex-landlord did not file Tenants Ledger in favour of Dari Dibya after vesting of Baheli interest, for which she could not pay rent to the defendants after vesting. She filed Misc.Case No.195 of 1978 before the Tahasildar to recognize her as a tenant and settle rent in her under the provisions of Orissa Estate Abolition Act. The Tahasildar allowed the Misc.Case on 13.4.1979 and directed the Revenue Inspector to open the Tenants Ledger in respect of the suit land and realize the rent from her from the date of vesting. She received intimation on 21.5.1982. During that period consolidation proceeding in respect of the suit village was in progress. The case land was recorded in the name of the State. Dari Dibya died in the year 1982. The plaintiffs, son and grandson of Dari Dibya filed objection case to record the case land in their favour, but the same was not of any avail. They filed revision before the Consolidation Commissioner, which is sub-judice. While the matter stood thus, the Revenue Inspector seized some bamboos from the suit land. Since there was cloud of suspicion over the title of the plaintiffs in respect of the suit land, they filed Title Suit No.314/1986-I in the court of the Munsif, Bhadrak seeking the reliefs mentioned supra.
3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the alleged hat patta is fabricated one. The order of the Tahasildar dated 3 13.4.79 is illegal and without jurisdiction. Sri Govinda Ray Jew is a public deity. The suit land is the intermediary interest of Sri Govinda Ray Jew deity. The Additional Assistant Commissioner of Endowments had appointed a trust board under Sec. 27 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as "O.H.R.E.Act") for proper management of the deity. The trust estate of the deity vested with the State on 18.3.1971. Neither the deity nor the trust board is party to the suit and as such the suit is not maintainable. Plaintiff no.2 filed a petition on 23.10.1978 for correction of Tenants Ledger on the basis of Hat Patta dated 10.2.1937 for an area of Ac.0.35 dec. Plaintiff no.1 had also filed a petition for both the plaintiffs on 1.6.1979 before the Tahasildar, Bhadrak for correction of R.O.R. claiming to be in possession of the suit land on the basis of the hat patta issued by the ex-intermediary. In that petition they stated that hat patta had been destroyed by fire. Misc.Case No.186 of 1979 was initiated in the court of the Tahasildar, Bhadrak and the same was transferred to the Additional Tahasildar-cum-A.C.O. camp-Amborali and renumbered as O.E.A Lease Case No.370 of 1980. In the said case, plaintiff no.1 deposed that the Tahasildar has fixed the rent in favour of Dari Dibya in Misc.Case No.186 of 1979. The case was dropped. The plaintiffs have taken a contradictory plea in Misc.Case No.195 of 1978 and Misc.Case No. 186 of 1979. In Misc.Case No.195 of 1978, it is stated that Debi Dibya got unregistered patta on 10.2.1937, but in Misc.Case No.186 of 1979, they stated that they got patta in 1945. In Misc.Case No.186 of 1979, they admitted that patta was destroyed by fire and stated so during inquiry by R.I. Kaupur and Consolidation Amin and in the court of A.C.O. The said fact was recorded by the Additional Tahasildar on 26.9.1980 that patta was 4 destroyed in 1957. Thus the patta referred to in the plaint is not genuine.
4. On the inter se pleadings of the parties, the learned trial court framed as many as five issues. To prove the case, the plaintiffs had examined three witnesses and on their behalf, four documents had been exhibited. No evidence was adduced by the defendants. The suit was dismissed. The unsuccessful plaintiffs challenged the said judgment and decree before the learned Additional District Judge, Bhadrak in Title Appeal No.22 of 1989/58 of 1989, which was eventually dismissed.
5. The Second Appeal was admitted on the following substantial questions of law:-
"1) Whether the courts below were justified in holding that the suit was not maintainable ?
2) Whether the suit for declaration of title is maintainable, when the revision under Section 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 was pending before the Commissioner, Consolidation?"
6. Heard Mr.Alok Kumar Mohanty, learned Advocate for the appellants and Mr.Swayambhu Mishra, learned Additional Standing Counsel for the respondents.
7. Mr.Mohanty, learned Advocate for the appellants submitted that after coming into operation of the Orissa Estate Abolition Act (hereinafter referred to as "O.E.A. Act") the suit land vested in the State of Orissa. After vesting, the O.E.A. authority on the application of Dari Dibya, mother of plaintiff no.1 and grandmother of plaintiff no.2 had filed Misc. Case No.195 of 1978 5 before the Tahasildar to recognize her as a tenant and settlement. The same was allowed on 13.4.1979. The said order attained finality and cannot be questioned. In spite of closure of consolidation operation, the suit is maintainable. The suit land does not come under the purview of consolidation operation. The hat patta, vide Ext.1, was thirty years old document and presumed to be genuine. Section 90 of the Indian Evidence Act provides presumption as to documents thirty years old. The learned trial court is not justified in holding that the same requires registration. The findings of the courts below on issue nos.3 and 4 are erroneous. He relied on the Full Bench decision of this Court in the case of Gulzar Khan Vrs. Commissioner of Consolidation and others, 1993 (II) OLR-194.
8. Per contra, Mr.Mishra, learned Additional Standing Counsel for the respondents submitted that the alleged hat patta is a fabricated one. The plaintiffs have taken contrary plea with regard to hat patta. It is stated by the plaintiffs that during pendency of the revision before the Consolidation Commissioner, they instituted the suit. The plaintiffs cannot maintain two parallel proceedings for the self-same cause of action. He further submitted that in view of non- obstante clause contained in sub-section 2 of Section 41 of the Orissa Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as O.C.H. & P.F.L. Act) even though the consolidation operation had been closed, in respect of cases or proceedings pending before the authorities under the provisions of the Act, it shall be deemed to be alive. He relied on the decisions of the apex Court in the case of Mumbai International Airport Private Limited Vrs. Golden Chariot Airport and another, (2010) 10 SCC 422 as well as this Court in the case of Jhumpamani Bewa and others Vrs. Khetrabasi Chhotray, 1986 (II) OLR-9.
69. In Gulzar Khan (supra), the question arose whether power conferred by Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (in short, "the OCH & PFL Act") would be available for exercise after a notification has been issued as contemplated by Section 41(1) of the OCH & PFL Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations. The Full Bench of this Court summarized the following principles.
"36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;
(i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Singh.
(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No.(ii) of Magulu.
(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party, who seeks to approach the Civil Court, as per Karbalai Begum's case."
10. In the instant case, while revision was pending before the Commissioner of Consolidation, the suit was filed. Sub-section 2 of Section 41 of O.C.H. & P.F.L. Act provides that notwithstanding anything contained in Sub-Sec.(1) consolidation operations shall not be deemed to have been closed in respect of cases or proceedings pending under the provisions of this Act on the date of issue of notification under Sub-sec.(1).
711. Interpreting a pari materia provision contained in U.P. Consolidation of Holdings Act, 1954, the apex Court in the case of Gorakh Nath Dube Vrs. Hari Narain Singh, AIR 1973 S.C.2451 held that despite a notification under Sec. 52(1) of the Act, closing consolidation operation in a village, cases or proceedings pending under the Act on the date of the issue of notification under Sec.52 (1) will be decided as though consolidation operation had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case.
12. Jhumpamani Bewa and others (supra) is distinguishable on facts. In the said case, there was no material before this Court as to whether the consolidation proceeding was pending. This Court came to hold that it was not possible to finally dispose of the controversy in the absence of the essential materials. It was further held that the learned trial court should make a thorough investigation and then arrived at the conclusion as to whether the suit shall abate or not.
13. Gulzar Khan (supra) is no authority for the proposition that a party can maintain two parallel proceedings for the self-same cause of action. The aggrieved party may approach any one forum.
14. The apex Court in the case of Mumbai International Airport Private Limited (supra) went into depth of common law doctrine of election. It held:
"43. Now the question is whether the contesting respondent on a complete volte face of its previous stand can urge its case of irrevocable licence before the Estate Officer and now before this Court ? The answer has to be firmly in the negative.8
44. Is an action at law a game of chess ? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas ?
45. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel and well established in our jurisprudence also. The doctrine of election was discussed by Lords Blackburn in the decision of the House of Lords in Scarf v. Jardine wherein the learned lord formulated :
"....a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act....the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election."
15. The matter may be examined from another angle. Sri Govinda Ray Jew deity is a public deity. The Additional Assistant Commissioner of Endowments appointed a non-hereditary trust board under Section 27 of O.H.R.E. Act for proper management of the institution. Neither the Commissioner of Endowments nor the trust board is a party to the suit. In a suit against an order of religious institution, notice under Order 1 Rule 8 C.P.C. is a sine- qua-non. No notice was issued. With regard to the hat patta, vide Ext.1, the plaintiffs have taken prevaricating stand before the Tahasildar. It was stated that hat patta was destroyed by fire. In Misc.Case No.195 of 1978, it was stated that hat patta was issued on 10.2.1937 whereas in Misc.Case No.186 of 1979, it was stated that 9 hat patta was issued in 1945. Cursorily hat patta was exhibited vide Ext.1. The learned trial court is justified in holding that evidence of the plaintiffs does not inspire confidence.
16. On an anatomy of the pleadings of the parties and evidence, both the courts concurrently held that the suit is not maintainable. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly.
17. In the wake of the aforesaid, the appeal fails and is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 4th August, 2017/CRB 10