Orissa High Court
Purstam Nayak And Others vs Government Of Orissa Taraf on 8 August, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.277 of 1991
From the judgment and decree dated 9.8.1991 and 24.8.1991
respectively passed by Smt.M.Pattnaik, learned Additional District
Judge, Bhadrak in T.A.No.54/289 of 1987 confirming the judgment
and decree dated 16.5.1987 and 27.6.1987 passed by the learned
Munsif, Bhadrak in 0.S.No.99 of 1985-I.
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Purstam Nayak and others .... Appellants
Versus
Government of Orissa Taraf
Collector, Balasore and another .... Respondents
For Appellants -- Mr.S.D.Das
Sr.Advocate
Mr.Jeet Swarup Samal
Advocate
For Respondents -- Mr.Swayambhu Mishra,
A.S.C.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing & Judgment:8.8.2018 Dr.A.K.RATH, J. This is a plaintiffs' appeal against confirming judgment. The suit was for declaration that M.S.R.O.R is wrong.
2. The case of the plaintiffs was that the suit land originally belonged to Ex-Zamindar, Harekrushna Mahatab. Murali Bhuyan, Katuri Bhuyan, Mani Bhuyan, Gayadhar Bhuyan and Atul Bhuyan were the tenants under the Ex-Zamindar. On 22.2.1950, the Bhuyan 2 family sold the land to one Mulchand Singh by means of a permanent lease deed. Mulchand Singh was in possession of the same. Thereafter Mulchand Singh gifted the land to Durga Dei by means of a registered gift deed dated 13.11.1950. While matter stood thus, Durga Dei sold the land to defendant no.2 by means of a registered sale deed dated 28.10.1957. After sale, tenants' ledger was opened in the name of defendant no.2. The plaintiffs were cultivating the land as bagachasi under defendant no.2. They filed an application under Section 36(A) of the O.L.R. Act for declaration that they are raiyats. The Tahasildar, Bhadrak by order dated 30.3.1977 declared the plaintiffs to be raiyats and directed them to pay compensation to defendant no.2. The plaintiffs paid compensation and obtained receipts thereof. The tenants' ledger was also duly corrected in favour of the plaintiffs. The land was recorded wrongly as Gochar in the Rakhit khata by the Consolidation Authority. With this factual scenario, the plaintiffs filed the suit seeking the relief mentioned supra.
3. Defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on the ground of non- service of notice under Section 80 C.P.C., it was pleaded that the order passed in O.L.R. Case No.622 of 1976 was void and without jurisdiction. The plaintiffs had no title. Kissam of land is Gochar.
4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court came to hold that the order passed in O.L.R. Case No.622 of 1976 is without 3 jurisdiction and not binding on defendant no.1. The plaintiffs had no title over the suit land. Held so, it dismissed the suit. Unsuccessful plaintiffs filed appeal before the learned District Judge, Balasore, which was subsequently transferred to the court of the learned Additional District Judge, Bhadrak and renumbered as Title Appeal No.54/289 of 1987. During pendency of the appeal, the appellants filed an application under Order 41 Rule 27 C.P.C. on 24.2.1988 to admit certain documents as additional evidence. Learned appellate court admitted those documents as additional evidence on 25.3.1988 and decided the appeal. It held that except Ext.1, the appellants had not filed any other documents to proof the title. The appellants had not proved any tenants' ledger to show that they were the tenants in respect of the suit land. Held so, dismissed the appeal.
5. This appeal was admitted on the substantial questions of law enumerated in ground nos.4, 5 & 6 of the appeal memo. The same are:
"4. Further the record of rights published in 1030 which was filed as additional evidence shows Bhagirathi Bhuyan and others were intermediaries under Harekrushna Mahatab, Ex-Zamindar and in that view of the matter the plaintiffs having perfected the title both the courts below have committed error of records in dismissing the suit.
5. For that both the courts below have committed error of law in not holding that the plaintiffs as well under whom they were tenants have perfected their title by adverse possession and the record of rights was liable to be corrected and both the courts below have committed error of law in not allowing the suit as such they are liable to be set aside.4
6. For that as it would be clear from the documents filed along with the additional evidence were of documents which were more than 30 years old as such they were admissible in evidence and the learned lower appellate court has committed error of law in not considering the same. Hence, the point of law for consideration is that the Tenants' Ledger and other registered documents being more than 30 years old are admissible in evidence and their non-consideration by the appellate court has vitiated the conclusion as such the same is liable to be set aside."
6. Heard Mr.S.D.Das, learned Senior Advocate assisted by Mr.Jeet Swarup Samal, learned Advocate for the appellants and Mr.Swayambhu Mishra, learned Additional Standing Counsel for respondent no.1.
7. Mr.Das, learned Senior Advocate for the appellants argues with vehemence that the finding of the learned appellate court that except exhibit no.1, no document had been filed, is perverse. Learned appellate court allowed the application for additional evidence and admitted number of documents. Learned appellate court has not scanned the documentary evidence on record.
8. Per contra, Mr.Mishra, learned Additional Standing Counsel for respondent no.1 submits that both the courts below concurrently held that the plaintiffs had no title over the suit land. Kissam of the land is Gochar. There is no perversity in the findings of the courts below.
9. The order-sheet of the appellate court reveals that the appellants filed an application under Order 41 Rule 27 C.P.C. on 5 24.2.1998 to admit certain documents as additional evidence. By order dated 25.3.1988, the application was allowed subject to proof and relevancy. Thus, the finding of the learned appellate court, except exhibit 1, there is no other document, is perverse. Learned appellate court has not dealt with the matter in proper perspective.
10. In the wake of aforesaid, the judgment of the learned appellate court is set aside. The matter is remitted back to the learned District Judge, Bhadrak for de novo hearing. In order to avoid further delay, the parties shall appear before the learned District Judge, Bhadrak on 7th September, 2018 on which date the learned appellate court shall fix a date of hearing and dispose of the appeal within a period of three months thereafter. Since the matter is remitted back to the learned appellate court, this Court refrains from deciding the substantial questions of law.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack, The 8th August, 2018/CRB 6