Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 56 (ORI)

NARASINGH CH. RAY v. RADHAGOVIND DEB

2004-01-22

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - This writ application is directed against the orders passed by the authorities under the Orissa Estates Abolition Act, 1951 in Annexures 1, 2 and 3 dated. 10.5.1965, 6.6.1967 and 21.10.1967 respectively. 2. Learned counsel for the opposite parties raised a preliminary objection with regard to maintainability of the writ application on the grounds of delay and latches. The final order passed by the Board of Revenue in the O.E.A. proceeding was on 21.10.1967 and the writ application has been filed in the year 1993 after more than 25 years. Since preliminary objection was raised on the above grounds, the case was initially heard on the above point. Learned counsel for the petitioner referring to some decisions submitted that if the Court is satisfied that the petitioner has a strong case-to be made out during hearing, the question of delay and latches will not stand on the way of the Court. Reliance was placed by the learned counsel for the petitioner on a decision of the Apex Court in the case of M/s. Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and and District Board, Shahabad and others, The Apex Court in the said case held as follows : "The rule which says that the Court may not enquire into belated an stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its on facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand and Motichand and Others Vs. The test is not to physical running of time. Where the circumstances which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, relied on is distinguishable on the facts of the present case. The levy if based on the net prpfits on the railway undertaking was beyond the authority and the illegal nature of the same has been questioned through belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim, of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed." Learned counsel for the petitioner also relied upon a decision of the Punjab & Haryana High Court in the case of Surjit Kaur Vs. Jhujhar Singh, The Punjab & Haryana High Court while deciding the first appeal answered the question of limitation in the following manner : "The learned counsel for the appellant has then contended that the decree of declaration of nullity pf marriage prayed for by the respondent should be refused to him u/s 23(1)(d) of the Act because of inordinate delay in filing the petition by him on November, 11,1976, when the marriage had taken place on May 24, 1970. This contention is also without merit. The appellant had given out at the time of her marriage with the respondent that she was a divorcee. The respondent having learnt that she was not a divorcee and her previous husband Sardul Singh was alive on May 24,1970, filed the present petition. The respondent has thus not caused unnecessary or improper delay in instituting the proceedings. This apart the marriage between the parties being null and void, it shall not stand validated on account of alleged delay in filing the petition. The decree prayed for, therefore, cannot be refused on this ground." Learned counsel also cited another decision of the Apex Court in the case of State of Maharashtra Vs. Pravin Jethalal Kamdar (Dead) by Lrs., on the self-same point. The decree prayed for, therefore, cannot be refused on this ground." Learned counsel also cited another decision of the Apex Court in the case of State of Maharashtra Vs. Pravin Jethalal Kamdar (Dead) by Lrs., on the self-same point. There is no dispute about the proposition of law laid down in the aforesaid cases and there is also no doubt about the proposition of law laid down by different Courts including the Apex Court that the inordinate delay in approaching the Court of law which hasn't been explained properly can also be a ground for dismissing the petition. However, since it was contended by the learned counsel for the petitioner that the petitioner has a very strong case and the O.E.A. authorities had no jurisdiction to entertain the petition filed on behalf of the opposite parties, I heard the learned counsel for the parties on merit also. 3. It appears from the record that after the disputed property vested in the Government, the opposite parties filed the claim before the Collector under the Orissa Estate Abolition Act for settling the property with them on equitable rent. The O.E.A. Collector invited objections and after hearing of the objections filed, settled the properties with the opposite parties. Appeal preferred against the said order and the order under the O.E.A. Act was dismissed and the second appeal filed before the Board of Revenue was also dismissed. The Board of Revenue disposed of the second appeal on 21.10.1967. Thereafter the petitioner never challenged the said order of the Board of Revenue before this Court. It further appears that the opposite parties had filed a suit i.e. O.S. No. 18 of 1959 for declaration that the disputed property is the Debottar property of Radhagobind Dev and for eviction of the defendants therein and one of the defendants was the present petitioner. The suit haying been decreed, First Appeal No. 31 of 1963 was filed before this Court. It was contended before this Court in the aforesaid appeal that the suit was not competent in view of the vesting of the suit property in the State Of Orissa and Section 39 of the O.E.A. Act stands as a bar for entertaining such a suit. It was contended before this Court in the aforesaid appeal that the suit was not competent in view of the vesting of the suit property in the State Of Orissa and Section 39 of the O.E.A. Act stands as a bar for entertaining such a suit. This Court accepted the plea and held that the civil Court had no jurisdiction to decide the matter as the same was subject matter of the application pending before the revenue authorities and further held that after vesting the intermediary has no jurisdiction to sue for recovery of possession even from a trespasser and his right, if any, will have to be worked out under the provisions of the Act, such as Sections 6,7,8 and 9. However, in the concluding paragraph, this Court held that in respect of the relief for mesne profits or arrears of rent, the position, however, stands on a different footing and decreed a part of the prayer in the suit. After settlement of the lands in favour of the opposite parties, a suit was again filed i.e. O.S.No. 15/111 of 1976/73-1 in the Court of the Additional Subordinate Judge, Puri for recovery of possession. Said suit was dismissed and the matter was carried in appeal before the learned Additional District Judge in Title Appeal No. 6/43 of 1982/78. The appeal was allowed in favour of the present opposite parties and the petitioner carried Second Appeal No. 180 of 1983 before this Court. After disposal of the Second Appeal on 16.7.1993, this writ application was filed on 27.8.1993. From the above, it is clear that the petitioner never thought of challenging the order of the O.E.A authorities in the year 1967 till the suit for recovery of possession was decided by this Court in the year 1993. Only after dismissal of the Second Appeal by this Court, the present writ application has been filed. 4. Apart from the above, from the judgment delivered in the second appeal, it appears that the opposite parties had filed a suit for recovery of possession. At the time of hearing, it was stated at the Bar that the petitioner had been granted lease in respect of the suit property by the opposite parties for a period of one year and thereafter he did not vacate the same and continued in forcible possession, thereof. At the time of hearing, it was stated at the Bar that the petitioner had been granted lease in respect of the suit property by the opposite parties for a period of one year and thereafter he did not vacate the same and continued in forcible possession, thereof. It is stated by the learned counsel for the petitioner that the petitioner is continuing in possession of the property till today. Shri Mohanty, learned counsel for the petitioner submitted that since the petitioner was a tenant under the opposite parties on the date of vesting, the land should have been settled in favour of the petitioner u/s 8 of the O.E.A. Act and the application filed by the opposite parties for settlement of the land in their favour as intermediary was not maintainable. Specific case of the petitioner before this Court in the writ application is that he continued as a tenant under the opposite parties till the date of vesting and by order of this Court in the first appeal he had also paid rent. If the petitioner's stand in the writ application is such, I do not find any reason as to why a plea of adverse possession was advanced in the suit from which the second appeal arose. Plea of adverse possession is not available to a tenant since possession of tenant is only permissible. From the plea taken in the civil suit, it is clear that the petitioner continued as a tenant for one year only in between 1940 to 1950 and thereafter remained in forcible possession thereafter till the same vested in the State Government under the Orissa Estate Abolition Act and because of the aforesaid reason plea of adverse possession was advanced before the civil Court. The above finding gets support from the following averment made in the appeal memo filed before this Court in S.A. No. 180 of 1983. It will not be out of place to mention that the petitioner was defendant No. 2 in the said suit. "The defendant No. 2-appellant as sole contestant denied the plaint allegation and claimed that he alone is in forcible possession as a trespasser in the suit land from 1949 up to date and has paid holding tax, effected improvement to the holding and possessing the same in his own right openly, peacefully and continuously. "The defendant No. 2-appellant as sole contestant denied the plaint allegation and claimed that he alone is in forcible possession as a trespasser in the suit land from 1949 up to date and has paid holding tax, effected improvement to the holding and possessing the same in his own right openly, peacefully and continuously. By the date of vesting in 1963, he acquired title to the intermediary interest by order of possession. Consequently, the settlement of the suit land on the plaintiff as ex-intermediary is void as the plaintiff No. 1 seized (ceased) to be intermediary in 1961." 5. In view of the above, I do not find any merit in the case and moreover the writ application having been filed 25 years after the orders were passed by the authorities under the Orissa Estate Abolition Act and there being no acceptable explanation on behalf of the petitioner for such long delay in filing writ application, I do not think this is a fit case to be entertained by this Court. Accordingly, the writ application is dismissed. Final Result : Dismissed