BUTU NAIK v. SARASWATI DEVI — 1998 DIGILAW 1 (ORI)

P. K. MISRA, J. ( 1 ) DEFENDANTS are the appellants against a confirming decision in a suit for declaration of right, title and interest over the disputed land and for recovery of possession and mesne profits. ( 2 ) ACCORDING to the plaintiff's case, the disputed land had been settled with the plaintiff in O. E. A. Case No. 696 by order dated 9-4-1971 and she is possessing the disputed land thereafter by inducting tenants. ( 3 ) DEFENDANT No. 1 alone contested the suit and others were set ex parte. Defendant No. 1 took the plea that the alleged settlement of the land under the O. E. A. Act was illegal. We further pleaded that he is in cultivating possession of the disputed land since more than thirty years and has perfected title by adverse possession. ( 4 ) BOTH the Courts below referring to Ext. 1 held that the disputed land had been settled with the plaintiff under the Orissa Estates Abolition Act and as such the plaintiff had title in respect of the disputed property. It was further found that since the land was settled with the plaintiff by order dated 8-4-1971 and the suit was filed in 1982 before expiry of twelve years, there was no adverse possession. The lower appellate Court also repelled the contention of the defendants-appellants regarding vesting of the disputed land in a proceeding under Chapter-IV of the Orissa Land Reforms Act. ( 5 ) EXT. 1 is the certified copy of Sabak Khatiyan No. 5, wherein the plaintiff has been recorded as the raiyat and there is an endorsement that by virtue of the order dated 8-4-1971 in O. E. A. Act Case No. 606, the land has been mutated from Khata No. 1 and recorded in Khata No. 5. Apart from the aforesaid certified copy of the Khatiyan, no other order has been produced by the plaintiff to show that, is fact, the disputed land has been settled under the provisions of the O. E. A. Act. Law is well settled that when primary evidence is available, such evidence has to be produced in Court to prove a disputed fact. Law is well settled that when primary evidence is available, such evidence has to be produced in Court to prove a disputed fact. In the present case, in absence of the order under the O. E. A. Act, the Courts below should not have jumped to the conclusion that the disputed land has been settled with the plaintiff merely from the endorsement made in the certified copy of the Khatiyan, and should have called upon the plaintiff to produce the order under the O. E. A. Act. Therefore, it is necessary for the trial Court to consider as to whether the disputed property has been settled with the plaintiff under the provisions of the O. E. A. Act and if so, whether it has been done in accordance with the proper procedure. In this connection, the trial Court is required to keep in mind the principles of law decided by this Court in the decision reported in AIR 1980 Orissa, 199 (FB) (Krupasindhu Misra v. Gobinda Chandra Misra ). ( 6 ) IF it is found that the disputed land has been settled with the plaintiff by order dated 8-4-1971 since the suit was filed in the year 1982, within twelve years, the question of adverse possession cannot crop up. If, on the other hand, it is found that the land had not been settled with the plaintiff, the suit for declaration of title is bound to fail. The finding of the lower appellate Court that there was no adverse possession is confirmed and need not be reopened. ( 7 ) FROM the discussion in the judgment of the lower appellate Court it appears that there was a ceiling proceeding under Chapter IV of the Orissa Land Reforms Act against the plaintiff. It had been contended that the disputed land was ceiling surplus land. Therefore, the trial Court should call upon the parties to produce the relevant documents relating to the ceiling case started against the plaintiff. If it is found that the disputed land has been shown as ceiling surplus land and vested in the State Government, the suit for declaration of title must fail. Therefore, the trial Court should call upon the parties to produce the relevant documents relating to the ceiling case started against the plaintiff. If it is found that the disputed land has been shown as ceiling surplus land and vested in the State Government, the suit for declaration of title must fail. If, on the other hand, it is found that the disputed land was not included in the ceiling proceeding or no material on this aspect is brought on record, the trial Court should bring the same fact to the notice of the concerned revenue authority, so that a fresh ceiling proceeding in accordance with the provisions contained in S. 50 of the Orissa Land Reforms Act can be initiated in case the title of the plaintiff is otherwise found. ( 8 ) IN the result, the appeal is allowed and the matter is remanded to the trial Court to re-consider the question of title in the light of observations made in this judgment as well as in accordance with the principles laid down in the decision reported in AIR 1980 Orissa 199 (FB ). The trial Court after receipt of the L. C. R. shall issue fresh notice to the parties and proceed thereafter. The suit should be disposed of as expeditiously as possible, preferably by end of June, 1998. The L. C. R. may be sent back immediately. There will be no order as to costs. Appeal allowed. .