Orissa High Court
State Of Orissa And Another vs Pitabas Swain And Another on 30 June, 2017
Equivalent citations: AIR 2017 (NOC) 933 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.198 of 1995
From the judgment and decree dated 4.3.1995 and 29.3.1995 respectively
passed by Sri J.P. Mishra, 1st Addl. District Judge, Cuttack in Title Appeal
No.90 of 1992 reversing the judgment and decree dated 30.9.1992 and
29.10.1992respectively passed by Sri P.C. Patnaik, Munsif Second Court, Cuttack in T.S. No.317 of 1989.
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State of Orissa & another .... Appellants
Versus
Pitabas Swain & another .... Respondents
For Appellants ... Ms. Samapika Mishra, ASC
For Respondents ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 23.06.2017 : Date of judgment: 30.06.2017
Dr. A.K.Rath, J Defendants are the appellants against a reversing
judgment.
2. Respondents are plaintiffs instituted T.S. No.317 of 1989 in the court of the learned Munsif Second Court, Cuttack for a declaration that they are the occupancy raiyats in respect of Schedule-A property impleading the appellants as defendants. The case of the plaintiffs is that the suit schedule property was originally Nijdakhal land of Sri Sri Madhabananda Jew. The same was recorded in the name of the deity as Baheldar in the sabik ROR. The character of the land was "Nadi Path". It was lying fallow and uncultivated. To 2 press the legal necessity, Sri Nityananda Deb Goswamy, marfatdar of the deity executed the unregistered sale deed in favour of the fathers of the plaintiffs for agricultural purposes permanently on 3.5.1946 with prior permission of the Commissioner of Endowment and accepted salami. Possession of the land was duly delivered to the lessees. The lessees re-claimed the suit land and used to pay rent. Sri Nityananda Deb Goswami latter executed "Chirasthayee Patta" on 3.5.1946 in favour of the lessees. Since they were in possession of the land for more than twelve years from the date of settlement, they acquired occupancy right over the suit land. The lessees died leaving behind the plaintiffs. The plaintiffs succeeded to the suit property. While the matter stood, the suit land vested in the State of Orissa in 1963. Thereafter, the marfatdar of the deity did not receive any rent from the plaintiffs. It is further pleaded that the ex-intermediary did not submit ekpadia in favour of the plaintiffs for which the defendants did not accept rent from the plaintiffs. The suit land had been erroneously recorded in Rakhit khata in the settlement ROR. Possession of the plaintiffs has been mentioned. In March 1989, the plaintiffs approached the Tahasildar and prayed to accept the rent. But then, he refused. With this factual scenario, the suit has been filed.
3. Pursuant to issuance of summons, defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of the defendants is that no notice under Sec. 80 CPC was served on the defendants and the suit is liable to be dismissed. The suit land vested in the State of Orissa in the year 1963 free from all encumbrances. No permission from the Commissioner of Endowment was obtained for lease of the land in favour of the predecessor of the plaintiffs. The lease, in favour of the predecessors of the plaintiffs, is illegal and invalid. It was 3 compulsorily registerable. The predecessors of the plaintiffs were not in possession of the suit land. They had not paid rent to the ex- intermediary. They were not occupancy raiyats. After vesting, the ex- intermediary had not submitted any rent roll either in favour of the plaintiffs or their predecessors. The suit land had been recorded in the Rakhit khata. The plaintiffs are rank trespassers.
4. On the inter se pleadings of the parties, learned trial court has framed as many as seven issues. To prove the case, the plaintiffs had examined two witnesses and on their behalf, five documents had been exhibited. On behalf of the defendants, one document had been exhibited. On a vivid analysis of the evidence on record, both oral and documentary as well as pleadings, learned trial court came to hold that the plaintiffs have not pleaded that they sent notice under Sec. 80 CPC to the defendants before institution of the suit. Though in the Ext-4, carbon copy of the notice said to have been sent under Sec. 80 CPC, it is stated that a copy of the plaint was sent, but no copy of the plaint was attached to Ext.4. P.W.1 (plaintiff no.1) could not say as to when Ext.4 was scribed and despatched to the defendants. He stated that he had not enclosed a copy of the proposed plaint in Ext.4. It came to a categorical conclusion that the plaintiffs had not served any notice under Sec. 80 CPC on the defendants. It was further held that no evidence was adduced by the plaintiffs to show that their fathers held any land as raiyat in the suit village for a continuous period of 12 years at the time the land was settled to them on 3.5.1946 and as such, they are not occupancy raiyats. Held so, learned trial court dismissed the suit.
5. Felt aggrieved, the plaintiffs filed Title Appeal No.90 of 1992 before the learned District Judge, Cuttack, which was subsequently transferred to the learned 1st Addl. District Judge, Cuttack. Learned lower appellate court came to hold that in Ext.4 the 4 names and address of the plaintiffs have been mentioned. It discloses the enclosure of the copy of the proposed plaint of the suit. Ext.4 and 4/b, postal receipts addressed in the name of the Tahasildar, Niali and Collector, Cuttack issued by the postal authorities. Ext.4/c acknowledgment card would show service of notice on the Tahasildar. But then Ext.4/d addressed to the Collector does not bear the signature of the Collector himself or any official on his behalf. Thus it is presumed that the Collector has received notice on the same day when the Tahasildar received notice. Notice under Sec. 80 CPC had been validly served on the defendants. It further held that the predecessors of the plaintiffs were the tenant of the State after vesting. The plaintiffs and their fathers being in possession of the suit land for more than 12 years prior to vesting have become the settled raiyat. Held so, learned lower appellate court allowed the appeal.
6. The second appeal was admitted on 23.9.1996 on ground nos.1 to 5 enumerated in the appeal memo. The same are -
"1. Whether in the absence of specific pleadings to the effect that notice U/s 80 CPC has been tendered by the plaintiffs on the State before filing of the suit, the evidence laid by plaintiff is admissible ?
2. Whether the lower appellate court is justified in holding that the suit is maintainable against the State in the absence of the pleading that notice U/s 80 CPC has been served on the State ?
3. Whether the suit is maintainable specifically when the suit property being the property of deity and was under
the control of the Commissioner of Endowment and he was not a party to the suit ?
4. Whether in the absence of any valid permission from the Commissioner of Endowment for transfer of the suit land which being the property of the deity, the lease deed Ext. 1 granted by the Ex-intermediary in favour of the plaintiffs father is valid ?
5. Whether the finding of the lower appellate court regarding the possession of the plaintiff on the basis of the unregistered lease deed is correct ?"5
7. Heard Ms. Mishra, learned Addl. Standing Counsel for the appellants. None appears for the respondents.
8. Ms. Mishra, learned Addl. Standing Counsel for the State, submitted that the plaintiffs have not issued notice under Sec. 80 CPC before institution of the suit and as such, the suit is liable to be dismissed. She further contended that there is no evidence on record that the fathers of plaintiffs were tenants in the village, where the land situates. They were not the occupancy raiyats. Neither the plaintiffs nor their fathers were in possession of the suit land. The land originally belonged to the deity. The same was vested in the State in the year 1963 free from all incumbrances.
9. Sec. 80 CPC is the hub of the issue. The same is quoted below;
"80. No suit shall be instituted against the Government including the Government of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
xxx xxx xxx and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."
10. The Privy Council in the case of Bhagchand v. Secretary of State, AIR 1927 PC 176 held that -
"The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which inter alia an injunction is prayed is still 'a suit' within 6 the words of the section, and to read any qualification into it is an encroachment on the function of legislation."
11. Taking a cue from the same, a Division Bench of this Court in the case of Manmohan Das v. Madhunagar Powerloom Weavers Co-operative Society and others, 1975 (1) CWR 366 held that the section is mandatory and a suit without issue of such notice is liable to be dismissed in limine. Sec. 80 CPC enjoins that the plaint itself would mention that notice under Sec. 80 has been served. Sec. 80 is a condition precedent to the institution of the suit. Sec. 80 prescribes that the plaint itself would mention that the notice was served. When from the perusal of the plaint it appears that there is contravention of Sec. 80 by non-mention in the plaint that a notice had been served, the plaint should be rejected in limine without issuing summons to the defendants to appear. The obligation has been cast on the plaintiff to serve notice under Sec. 80 and mention that fact in the plaint. Absence of notice touches the root of the matter and affects the jurisdiction of the court, unless there is waiver.
12. The decisions in the case of Basudeb v. Padmanav, ILR 1959 Cuttack 258, A.C Parida and others v. Banamali Muduli, 4 O.J.D 13 and State v. Bamadeb, AIR 1971 Orissa 227 that in the absence of averment in the written statement that there was non- service of notice, the doctrine of waiver would apply, have been overruled by the Division Bench of this Court.
13. On a cursory perusal of the plaint, it is evident that there is no whisper with regard to service of notice under Sec. 80 CPC on the defendants. Reliance placed on Ext.4 is totally misplaced. Ext.4 shows that the copy of the plaint was sent to the defendants along with notice. Curiously the copy of the plaint was not annexed.
7Learned lower appellate court rendered a finding on surmises and conjectures. Learned trial court rightly held that notice under Sec. 80 CPC was not issued by the plaintiffs to the defendant before institution of the suit.
14. The suit land has been recorded in the name of the State in Rakhit Khata in the hal settlement ROR. After coming into force of the Orissa Estate Abolition Act, the suit land vested in the State in the year 1963 free from all encumbrances. The ex-intermediary had not submitted expadia in favour of any person. No rent roll was prepared. The land belongs to Sri Sri Madhabananda Jew. The deity is a public deity. Sub-section (1) of Sec. 58 of the Orissa Hindu Religious Endowments Act, 1939 (hereinafter referred to as "the OHRE Act") provides that no exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple or of any specific endowments attached to a math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the commissioner and two persons, who shall be officers in the service of the Crown, appointed by the Provincial Government in this behalf. Any alienation in contravention of Sec. 58 of the OHRE Act is invalid and inoperative. Reliance placed on the permission granted by the Commissioner of Endowment is equally misplaced. Neither khata number, plot number, area nor mouza has been mentioned. Thus the unregistered sale deed said to had been executed by the then marfartdar of the deity without prior permission of the Commissioner of Endowments is void. With regard to the substantial question of law enumerated in ground no.3, since there is no pleading or issue, this Court did not delve into the same. The substantial questions of law are answered accordingly.
815. Resultantly the appeal succeeds and is accordingly allowed. Impugned judgment of the learned appellate court is set aside and the judgment of the learned trial court is restored.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 30th June, 2017/Pradeep