Pagal Behera And Others vs Umesh Rout And Others on 30 January, 2017

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Orissa High Court

Pagal Behera And Others vs Umesh Rout And Others on 30 January, 2017

Bench: Biswanath Rath

ORISSA HIGH COURT: CUTTACK
O.J.C. No.14034 of 1999

In the matter of an application under Article 227 of the Constitution of India.

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Pagal Behera & others ... ... ... Petitioners

-versus-

Umesh Rout & others ... ... ... Opp. Parties

For Petitioners : M/s. N.C.Pati, A.K.Mohapattra,
S.Mishra, S.Tripathy,
P.K.Mallik, A.Das, A.K.Das &
M.R.Dash.

For Opp.Parties : Mr. P.K.Nanda.
(O.P.Nos.1,3, 4 to 5)
Sri K.K.Mishra,
Additional Government Advocate.

Date of Hearing: 12.01.2017
Date of Judgment: 30.01.2017
P R E S E N T:

THE HONOURABLE MR. JUSTICE BISWANATH RATH

Biswanath Rath,J. This writ petition has been filed assailing the orders under Annexure-

4 and 5 passed by the appellate authority as well as the revisional authority

in exercise of power under Orissa Consolidation of Holdings and Prevention

of Fragmentation of Land Act, 1972(hereinafter for short called as "the Act").

2. Short background involved in the case is that filing Objection Case

No.625 of 1982, objector Umesh Rout, present opposite party no.1 against

Pagal Behera, Sunamani Behera and Kulamani Behera applied for deletion

of name of present petitioners, the opposite parties therein, discarding the

entry of forcible possession in their favour in Column Nos.31 and 32 of the
2

Land Register in respect of sabik plot no.2611, Ac.0.230 decimals

corresponding to hal plot no.2674 of hal khata No.31 recorded as bari under

the premises that they have purchased it. The present petitioners also filed

Objection Case No.561 of 1982 to record the above suit land in their favour

considering their long possession since 1929. Both the proceedings were

heard together. The objectors in satisfying their claim pleaded that case land

being a jagir land and Jagirdar being a service holder, the Jagirdar is a tenant

at rest and he can be evicted by any time by ex-intermediary. When

Jagirdar's right is precarious one, Pagal Behera and his relations' right

becomes more precarious and they have no right in the eye of law. The

Jagirdar's name has been found in 'D' Register having not been proved,

there has been no proving of Jagirdar as intermediary. Hence the status of

the Behera family becomes uncertain. Further, claim of Behera family for

having their occupancy right over the disputed property remaining contrary to

the provision of Section 236 of the Orissa Tenancy Act. Behera Family had

also no right over the property and they can at best be said to be the raiyat

and the right of a raiyat being not hereditable and the so called raiyat having

died, their sons have no right, title, interest of possession over any portion of

the case land and further title on the plea of adverse possession also not

justified. It is claimed by the claimants therein that after vesting of estate, the

State Government became the owner of the case land. The Jagirdar applied

to the Tahasildar, Kendrapara for settlement and the Tahasildar in Vesting

Misc. Case No.11022/13002 of 63-64 settled the case land in favour of

Krushna Moharana and others and the rent was collected from them and

then they duly sold the disputed land to Banamali Rout with appropriate

consideration money. Possession was also delivered to him on 12.10.1971
3

and after death of Banamali Rout, his sons and grandsons were paying rent

to the Tahasildar. Occupancy tenant having not contested the claim in the pr

oceeding under Section 8-A (4) of the Orissa Estates Abolition Act, his right

in whatever manner has been extinguished. Therefore, the fact of possession

and the claim based thereon in the Consolidation Proceeding becomes

immaterial. Behera Family, the opposite parties in objection Case No.625 of

1982 and the objectors in Objection Case No.561 of 1982 on the other hand

claimed that Maddox report reveals that homestead land includes bari. The

homestead embrace not merely the structures building but includes also

adjacent buildings curtails, garden, courtyards, orchards and all that is

necessary for convenient occupation of the house. The Maddox report

Bhag or Dhulibhag means literally "sharing of the dust", a rent in kind is equal

to half of the produce including bye products. Dhulibhaga interest noted in

the Khatians means a tenant who pays kind rent and therefore, they have

acquired the right of occupancy under Section 236 of the Orissa Tenancy Act

and the interest of raiyat not touched by the Orissa Estates Abolition Act.

It is further pleaded by the Behera family that the tenants having not

been evicted by the ex-intermediaries and the exercise of the Jagirdar since

recognized, the possession of the recorded tenants and their heirs in Yadast

No.1103, they have a strong case and thus contended that since the order in

the O.E.A. proceeding in favour of Jagirdars is invalid for the defective in the

proceeding like service of notice etc, the orders having passed by the O.E.A.

authority has no bearing against the Behera family.

3. Considering the rival contention of the two sets of objectors under

the premises that the Behera Family cannot be declared as Occupancy

Tenant as in the decision of the Collector in the O.E.A. Proceeding declaring
4

the Maharanas as raiyats on the land and the settlement was made in their

favour in Vesting Misc. Case No.11022/13002 of 63-64. The rent having

been paid to the Government after settlement is over, the sale transaction

between Maharanas and Banamali Rout since valid, right of the Banamali

Rout lies with the objectors i.e. the present opposite parties. It is also held by

the Consolidation Officer that defect in the O.E.A. proceeding cannot be gone

into by the authorities under the OCH & PFL Act. It is under the premises,

the Consolidation Officer held that the opposite parties claim for possession

on the basis of payment of rent cannot override the claim of the opposite

parties whose possession is also disclosed by virtue of the entry in the

yadast and consequently though declared the title in favour of the

petitioners i.e. the present opposite parties but declared the possession in

favour of the present petitioners and issued consequential direction for

necessary correction in the record-of-right.

4. Being aggrieved by the order passed by the Consolidation Officer in

Objection Case No.625 of 1982 disposed of along with Objection Case

No.561 of 1982 at the instance of Pagal Behera and others, Umesh Rout and

others, the objectors in Objection Case No.625 of 1982 preferred an appeal

under Section 12 of the Act vide Appeal Case No.105 of 1983.

Simultaneously, an appeal was also preferred by Pagal Behera and Family

bearing Appeal Case No.118 of 1983 . Both the appeals were heard together

and the appellate authority on the basis of settlement of land in favour of the

heirs of the recorded Jagirdar in the O.E.A. proceeding in Vesting Misc. Case

No.11022/13002 of 63-64 and further finding that the subsequent land

owners having assessed to rent and paying rent and finding that the sale of

the disputed land by the successors of the Jagirdars in favour of Rout &
5

family by virtue of a Registered Sale Deed in the year 1971 while confirming

the finding of right over the disputed land in favour of the Rout family,

declared by the Consolidation Officer, held the directions so far it relates to

recording note of possession in the record-of-right by the Consolidation

Officer be illegal and under the circumstance while allowing the Appeal Case

No.105 of 1983 at the instance of the Rout & family dismissed the Appeal

Case No.118 of 1983 at the instance of the Pagal Behera & Family and

directed Assistant Consolidation Officer to prepare the record-of-right

exclusively in the name of Rout & family. Pagal Behera & family preferred

Consolidation Revision Case No.1450 of 1989 /1202 of 1984. While

delivering to interfere in the view of the appellate authority, the

Commissioner, Consolidation dismissed the revision. Resulting to present

writ petition.

5. Assailing the impugned order, Sri N.C.Pati, learned counsel

appearing for the Pagal Behera & family, the present petitioners submitted

that the order of the O.E.A. Collector is without jurisdiction as the right of

tenant has not been touched on the introduction of the O.E.A. Act. It is only

the intermediary interest, which has been abolished. Further, Behera family

being recorded as Dhulibhag tenant thereby meaning stitiban (occupancy)

tenants on vesting of the property, the tenancy right of the Behera family was

well protected under the provision of Section 8(1) of the O.E.A. Act. There

has been illegal decision of the O.E.A. authority in clear ignorance of the

case of the Occupancy Tenants and the order of the O.E.A. authority since

without jurisdiction, has no application to the present case. It is claimed that

1929 record-of-right showing possession of Behera family as Dhuliubhag

tenants and final record-of-right of Major Settlement Operation being
6

prepared in presence of the successors of Jagirdars, the O.E.A. proceeding

was misconceived and being void, could not have weighed in the mind of the

consolidation authorities. It is further urged that from the certified copy

granted involving Vesting Misc. Case No.11022/13002 of 63-64 applied by

Kalpataru Rout find, the proceeding has the following deficiencies:

(a) the copy form has been written in different inks;

(b) some portion of the application has been torne

away and tampered;

and another sheet of paper is attached without

the signature of concerned Clerk or the Officer;

(d) The year of printing of the Application Form has

been cut out;

(e) 2nd and 3rd line of the Form have been tampered

by inserting other names which found not to be

genuine;

(f) the case was started on 20.10.63 but it is not

understand how the public notice was served on

21.10.63

. The        date      of     notice No. has been

               tampered.      The      land    particulars given in the

               notice is other         than    the     village-Nuahat and

               subsequently cutting is marked;

        (g)    Apparently      there    is some       manipulation in the

               case record;
                                     7




        (h)    no case register is available in office Almirah for

               verification.

Referring to the defects indicated hereinabove, Sri Pati, learned counsel appearing for the petitioners urged that there was no proceeding at all and fabricated documents have been created. Further referring to the proceeding under Section 8-A (2) of the O.E.A Act, Sri Pati, learned counsel appearing for the petitioners contended that mandatory provision in as much as giving public notice inviting objections in such proceeding having not been followed, settlement if any therein, becomes bad and the public notice purported to have been issued neither shows the number nor the area of the case and ultimately contended that the note of possession in favour of the petitioners could not have been ignored under any circumstance. Establishing his claim that the decision of the O.E.A. authority is void, Sri Pati learned counsel referring to decisions in the case of Kiran Singh and others v. Chaman Paswan and others, A.I.R. 1954 S.C. 340, in the case of Kumar Bimal Chandra Sinha (deceased) and after him his legal representatives and others v. State of Orissa and others, A.I.R.1962 Supreme Court 1912, in the case of Mangulu Jal and Ors v. Bhagaban Rai and Ors, A.I.R. 1975 Ori 219, paragraph-20 therein, , in the case of Radhika Bewa & Radha Dei and others v. Panchanan Sahu & others, (1987) 64 CLT 523, in the case of State of Orissa and others v. Brundaban Sharma and another,1995 Supp (3) Supreme Court Cases 249 contended that there has been no proper adjudication of the issues involved in the matter and the impugned orders herein being contrary to the settled position of law, the aforesaid decisions ought to be interfered and set aside. 8

6. Sri Prasanna Kumar Nanda, learned counsel appearing for the contesting opposite parties on the other hand seriously objecting the contentions raised by Sri Pati, learned counsel for the petitioners, submitted that it is a case in one hand the petitioners claim their right over the property by virtue of note of possessions versus case claimed by the present private opposite parties on the basis of the decisions passed by the competent authority under the O.E.A. Act and consequential assessment of rent as well as a valid sale deed in favour of the private opposite parties by the true owner of the land. Further, the rent receipts having clearly establishing that the private opposite parties are in possession, Sri Nanda, learned counsel appearing for Private opposite parties contended that not only none of the decisions cited by Sri Pati, learned counsel has any application to the present case but Consolidation Authority in view of the settled position of law are also bound by the decisions of the Revenue Authorities, particularly the order, passed by the authorities under the Orissa Estates Abolition Act and consequently claimed that neither the appellate authority nor the revisional authority have committed any illegality and thus, prayed for not interfering in the impugned orders and to dismiss the writ petition.

7. Sri K.K.Mishra, learned Additional Government Advocate on the other hand supporting the stands taken by Sri Nanda, learned counsel appearing for the private opposite parties submitted that the role of the Consolidation Authority being confined to preparation of record-of-right and the correction, if any, thereon are bound by the decisions of the Revenue Authority and for their consisting view holding that the opposite parties are rightful owners of the properties and declaring the possession in favour of the 9 private opposite parties on the basis of rent receipts have not committed any illegality leaving any scope for interfering in the same.

8. Considering the rival contentions of the parties, after carefully examining the judgments passed by the competent authorities and enclosures herein, this Court finds on one hand the petitioners are calming right over the disputed property on the premises that the interest of the raiyats has not been touched on the introduction of the Orissa Estates Abolition Act and they being tenants under the Jagirdar with Dhulibhag interest and remaining in the possession of the said suit land, acquired right of occupancy under Section 236 of the Orissa Tenancy Act. Further, their right has also not taken away on introduction of the Orissa Estates Abolition Act. Further, the right of the tenants having not been evicted by ex- intermediary and the successors of Jagirdar having recognized, the possession of the recorded tenants and their heirs in the Yadast No.1103, the rights vested to them cannot be taken away in the garb of the proceeding under Section 8-A of the O.E.A. Act, an attempt clandestinely designed behind the back of the petitioners. Further, for the defects crept in the O.E.A. proceeding in the matter of no proper notice to the Jagirdars as well as the persons admittedly in possession as found by the consolidation officer, such decision cannot have a binding effect on the petitioners. Whereas the claim of the private opposite parties is based on claim that there is no material to establish that Jagirdar is an intermediary, consequently Aparti Behera's status was uncertain. Further, the claim of right of the petitioners ultimately under the Orissa Tenancy Act is not sustainable for not involving a dwelling house on the case land and even assuming that the Behera family had a raiyat right, the right of a raiyat being not hereditable, their sons have no 10 right, title, interest and possession over any portion of the case land and no plea for adverse possession is also entertainable in such contingency. For the declaration in favour of the Jagirdar in the O.E.A. proceeding settling the land in favour of Krushna Moharana and rent having been collected from them by the government and further such land having been transferred by virtue of sale deed and possession having been delivered in favour of the private opposite parties, a clear right accrued in favour of the private opposite parties.

9. Scan of the record leaves no doubt that the disputed land remained under classification as 'bari' in the sabik record. The note of dhulibhag in the rent column also indicates that fruits of bari was shared between Jagirdar and bhag tenants and for having no introduction in the sabik record that the case land was used as residential purpose and further in the evidence of Sekh Kala and Hara Barik admitting that the residential house of the petitioner adjoins the disputed land, the plea of the petitioner taking shelter of Section 236 of the Orissa Tenancy Act is not applicable to the present case. Further, from column no.4 of the record-of-right vide Annexure-1, it appears Hadi Maharana etc., were jagirdars with a note of possession in favour of Aparti Behera etc., upon payment of rent as dhulibhag. The yadast under Annexure-2 clearly discloses that the land under Annexure-1 is remaining under the possession of Aparti Behera, Gopi Behera and Balaram Behera and subsequently their legal heirs. Thereafter, bebandobast record was prepared indicating the land in possession of these Behera family as tenants with payment of dhulibhag. The note of possession under Annexure-1 and the note of possession under Annexure-2 have never been challenged and these two records at least clearly establish when Hadi Maharana remains as 11 Jagirdar, the Behera Family remains as tenants. This right of the present petitioners have never been challenged in any of the proceeding except the private opposite parties taking the plea of development through a O.E.A. proceeding under Section 8-A of the Act and thereafter a sale deed between the persons settled in O.E.A. Act and the predecessors of the opposite parties. For the admitted position that not only Behera family remained as tenant, rent by way of Dhulibhag, their name very much appearing in the record-of-right as well in the yadast in coming into effect of the Orissa Estates Abolition Act. whether the right of such tenants have been affected or not and whereas a proceeding under Section 8-A of the Act was maintainable at the instance of the Jagirdar claiming to be the tenants over the disputed property, be it stated here that there is also no dispute that at many occasions the private opposite parties have also admitted that the present petitioners to be raiyats. Following the provision under Section 2 of the Orissa Estates Abolition Act, Government is empowered to publish notification inviting certain properties vested in the State thereby declaring that the interest of intermediaries or a class of intermediary in whole or part of the estate vested in the State free from all encumbrances. This Court here observes the Jagirdar involved in the case at hand is a class of intermediary and for the intention of the O.E.A. Act such land was deserved to be vested in the State except the interest expressly saved by or under the provision of the said Act. The definition of intermediary defined in Clause-h of Section 2 under the O.E.A. Act reads as hereunder:

(h) 'Intermediary' with reference to any estate means proprietor, sub-proprietor, landlord, land-holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure-holder and 12 includes an inamdar, a jagirdar, zamindar, Illaquedar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the Ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State;

Definition of intermediary clearly includes Jagirdar and being an intermediary has lost all his title over the land on coming into operation of the O.E.A. Act.

10. In the case of Kiran Singh & others vrs. Chaman Paswan & others reported in AIR 1954 SC 340 in paragraph-6 Hon'ble apex Court held as follows:-

"6. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, & that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the 13 matter, there can be no doubt that the District Court of Monghyr was 'coram non judice', and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. Similarly, in the case of Kumar Bimal Chandra Sinha (deceased) & after him his legal representatives & others vrs. State of Orissa & others AIR 1962 SC 1912, a Constitutional Bench of Hon'ble apex Court in paragraph-9 categorically held by virtue of notification under Section 3 of the O.E.A. Act Rayati interest did not vest.

From the above, it becomes clear that a decree passed by a court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon. It also becomes clear that the Rayati interest did not vest in the State.

11. In view of the above, there remains no doubt that the Jagirdar involved in the record-of-right under Annexure-1 and the Yadast under Annexure-2 i.e. Maharana Family were performing as intermediary over the disputed property, on the coming into operation of the Orissa Estates Abolition Act and for the provisions contained therein, the Jagirdar had already lost his right over the property and the petitioners being continuing as tenants under the Jagirdar with provision of rent of Dhuli Jhada, their right was being protected under Section 8 of the Orissa Estates Abolition Act. As relevant, this Court takes note of the provision contained in Section 8 of the Orissa Estates Abolition Act.

8. Continuity of tenure of tenants - (1) Any person who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a 14 tenant under an Intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to, immediately before the date of vesting.

(2) Any person holding land in a village for service as a village servant by whatever name called, shall be deemed to hold it under the State Government subject to such terms and conditions as he was entitled or subject to, immediately before the date of vesting.

(3) Any person who immediately before the date of vesting held land under an Intermediary on favourable terms for personal service rendered by him to such Intermediary shall, from the date of vesting, be discharged from the conditions of such service and the land may be settled with him in such manner and under such terms and conditions as may be prescribed :

[Provided that nothing in sub-section (3) shall apply to a trust estate which is vested in the state on or after the date of coming into force of the Orissa Estates Abolition (Amendment) Act, 1970.] The provision referred to hereinabove, leave no doubt that the petitioners' right was protected under Section 8 of the Orissa Estates Abolition Act and as a consequence, this Court finds the proceeding under Section 8-A of the O.E.A. Act by the Maharana family once remaining as 15 Jagirdars in the terms of intermediary was not maintainable and thus, any order passed in any such proceeding was void. This Court finds force in the submission of Sri Pati in this regard and holds the order obtained by the Jagirdar in the Section 8-A proceeding becomes void. This Court further observes that any transaction taking aid of such void order also becomes null and void.

12. For the reasons indicated hereinabove and the law of the land discussed herein above, this Court finds the orders impugned under Annexures-4 and 5 as bad in law and hence, this Court sets aside both. As a consequence, this Court while interfering in the order at Annexure-3, allows the claim involving Objection Case No.561 of 1982 at the instance of the present petitioners and dismisses the claim vide Objection Case No.625 of 1982 and further directs the Assistant Consolidation Officer to correct the record-of-right showing the petitioners as owners of the land with absolute possession.

The writ petition succeeds. In the circumstance there is no order as to cost.

....................................

Biswanath Rath,J.

Orissa High Court, Cuttack The 30th day of January,2017/sks

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