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2008 DIGILAW 947 (ORI)

ALEKHA PRADHAN v. CHANCHALA SWAIN

2008-10-23

A.S.NAIDU

body2008
JUDGMENT : A.S. Naidu, J. - The Appellant had filed T.S. No. 113/213 of 1990/1987-1 in the court of the then Addl.Munsif, Puri inter alia praying for permanent injunction restraining the Defendants from interfering with his peaceful possession of the disputed property in any manner. As per the plaint averments, the property in dispute was the 'Niz Dakhal' property of Shri Jagannath Temple Managing Committee, pro forma Defendant No. 11 and was a part of an estate ('SATEISI HAZARI') of the said Defendant. In the year 1965, the Plaintiff claimed to have reclaimed the land with tacit knowledge and consent of pro forma Defendant No. 11 and possessed the same as a raiyat. Defendant No. ll never took any step to evict him there from and on the other hand received rent and other dues from him. On the basis of such averments, the Plaintiff claimed to have acquired the right of an occupancy raiyat and alleged that though Defendants 1 to 10 had no semblance of right, title or possession in respect of the said property in question, they having forcibly tried to dispossess the Plaintiff, the latter filed the aforesaid suit. 2. Defendants 1 and 2 filed a written statement inter alia taking the stand that the Plaintiff had no locus standi to file the suit and further the same was bad for non-joinder and mis-joinder of parties. The assertion that the disputed property was the 'Niz Dakhali' property of Defendant No. 11 being a part of SATEISI HAZARI estate was denied and so also the assertion that the Plaintiff had acquired the status of occupancy raiyat. In short, the said Defendants denied most of the plaint averments and took the stand that Bansi Swain and Naran Pradhan, father of Defendant No. 1 and Defendant No. 2 respectively were inducted as tenants in respect of the disputed lands and they after reclaiming the lands were in possession thereof. Defendants 3 to 10 had filed a separate written statement challenging the maintainability of the suit in view of Section 16A of the Jagannath Temple Act. Besides denying all the plaint averments, they averred that the suit was barred by time, and that neither the Plaintiff nor other Defendants ever possessed the disputed land, but they (defendants 3 to 10) were possessing the same all along. Besides denying all the plaint averments, they averred that the suit was barred by time, and that neither the Plaintiff nor other Defendants ever possessed the disputed land, but they (defendants 3 to 10) were possessing the same all along. Defendant No. 11-Temple Managing Committee had filed its written statement asserting that the disputed lands were Niz Dakhali lands of Lord Jagannath. The Plaintiff was forcibly cultivating the same and, as such, after notice, cases under the Jagannath Temple Act and the Land Encroachment Act were initiated. After hearing of the said cases, penalty and rent had been assessed for unlawful occupation which the Plaintiff had paid. In short, according to this Defendant, the Plaintiff was a tenant under it on payment of rent. It was further asserted that after vesting of the estate, the land in question had been settled in favour of the Temple in consonance with the provisions of the Orissa Estates Abolition Act and the said order was the subject-matter of OJC No. 2219 of 2001. 3. On the basis of the pleadings of the parties, the trial court framed as many as fifteen issues.Both sides adduced oral and documentary evidence. After discussing the evidence threadbare, the trial court while answering issue Nos. 4, 5, 7 and 15 held that the Plaintiff had been inducted as a tenant in respect of the disputed property. As he was an occupancy raiyat, he had got right title and possession of the said property and thus decreed the suit on contest against the Defendants. It injuncted the Defendants from entering into the disputed lands, disturbing the possession of the Plaintiff, damaging the same in any manner or cutting and carrying away the trees standing there on. 4. The decree of the trial court was assailed by Defendants 1 and 2 in Title Appeal No. 9/11 of 2001/1992 and by Defendant No. 11-Temple Managing Committee in Title Appeal No. 26/14 of 2001/1002. Both the appeals were heard and disposed of by the Ad hoc Addl.District Judge, FTC-III, Puri. 5. 4. The decree of the trial court was assailed by Defendants 1 and 2 in Title Appeal No. 9/11 of 2001/1992 and by Defendant No. 11-Temple Managing Committee in Title Appeal No. 26/14 of 2001/1002. Both the appeals were heard and disposed of by the Ad hoc Addl.District Judge, FTC-III, Puri. 5. It would be apt to state here that during pendency of the suit Defendant No. ll had filed a petition for amendment of its written statement mainly on the ground that the written statement filed by it was not just and proper as some of the employees of the Temple being gained over had made certain averments therein which were not correct. The trial court having rejected the said petition, Defendant No. 11 had assailed the same in revision. During pendency of the revision, however, the suit was disposed and consequently the revision became infructuous. 6. After receiving notice of the appellate court, the Plaintiff who was the contesting Respondent appeared in the appeals and in course of hearing of the appeals he filed a petition for amendment of the plaint so as to introduce a prayer for declaration of his right, title and interest in respect of the disputed property. The appellate court however rejected the said petition. 7. After scrutinizing the evidence, both oral and documentary, and hearing the Learned Counsel for the parties, the appellate court held that Defendants 3 to 10 having not preferred any appeal, the decree of injunction passed by the trial court against them had become final. It further held that the Plaintiff did not acquire occupancy right over the disputed property as he was not a settled raiyat of the village. However, possession of the Plaintiff was believed by the appellate court and it was held that Defendants 1 and 2 had produced absolutely no document to substantiate their plea of possession over the disputed property. It was however held that Defendant No. ll-the Temple Managing Committee being the paramount owner no restraint order could be passed against it. On the basis of such conclusion the appellate court dismissed Title Appeal No. 9/11 of 2001/1992 filed by Defendants 1 and 2, but then allowed Title Appeal No. 26/14 of 2001/1992 filed by Defendant No. ll. It was however held that Defendant No. ll-the Temple Managing Committee being the paramount owner no restraint order could be passed against it. On the basis of such conclusion the appellate court dismissed Title Appeal No. 9/11 of 2001/1992 filed by Defendants 1 and 2, but then allowed Title Appeal No. 26/14 of 2001/1992 filed by Defendant No. ll. The appellate court set aside the decree of the trial court so far as it related to Defendant No. ll and confirmed the decree of permanent injunction as against Defendants 1 to 10 restraining them, as stated above. 8. Against dismissal of T.A. No. 9/11 of 2001/1992 no appeal has been filed by Defendants 1 and 2 and consequently the decree of injunction passed by the trial court against them has become final and binding against them. The Plaintiff however has filed this RSA assailing the decree of the appellate court in T.A. No. 26/14 of 2001/1992. The said Title Appeal, as stated earlier, had been filed by Defendant No. ll assailing the decree of injunction passed by the trial court. In this RSA a Cross-Objection has been filed by Defendants 1 and 2. 9. In course of hearing, it appeared that the Writ application, i.e. OJC No. 2219 of 2001, had been filed by the present Appellant assailing the orders of the OEA authorities settling the disputed lands in favour of Defendant No. ll. The said Writ application was heard and disposed of by a Division Bench on 19-6-2008. In course of hearing of the Writ application, referring to the finding of the trial court, Mr. Patnaik, Learned Counsel appearing for the writ Petitioner (appellant in the present appeal), fairly submitted that the Petitioner no longer disputes the ownership of Defendant No. 11-Sri Jagannath Temple Managing Committee over the land in question and prayed to permit the Petitioner to continue as a tenant under the Lord Jagannath. Mr. Ratho, appearing for Defendant No. 11 submitted that when the writ Petitioner did not dispute the ownership of Lord Jagannath over the disputed land, Defendant No. 11 had no objection to permitting the Petitioner to continue as a tenant, subject to payment of land revenue by him regularly. Mr. Mr. Ratho, appearing for Defendant No. 11 submitted that when the writ Petitioner did not dispute the ownership of Lord Jagannath over the disputed land, Defendant No. 11 had no objection to permitting the Petitioner to continue as a tenant, subject to payment of land revenue by him regularly. Mr. Routray, appearing for the interveners in the Writ application disputed the contention of the Petitioner that he was a tenant under the Temple and claimed that the interveners who were Defendants 1 and 2 in the suit were the tenants. This Court held that the dispute with regard to status of the Petitioner vis-a-vis the Temple was the subject-matter of the present RSA, and the same could be decided therein and disposed of the Writ application with the following observations:- After going through the materials this Court finds that the Addl.District Magistrate, Puri has not committed any error in settling the lands in favour of Sri Sri Jagannath Mahaprabhu, Bye Puri. The question of title to the disputed land has also been adjudicated by the Consolidation authorities, vide Annexure-1. In view of the aforesaid facts, the question of ownership of the land no longer stands in dispute. Accordingly this Writ Petition is disposed of holding that Sri Sri Jagannath Mahaprabhu is to be deemed to be the owner of the disputed land, but then the question as to whether the present Petitioner or the interveners are tenants under the deity shall be decided in RSA No. 423 (sic) of 2003. 10. Mr. Accordingly this Writ Petition is disposed of holding that Sri Sri Jagannath Mahaprabhu is to be deemed to be the owner of the disputed land, but then the question as to whether the present Petitioner or the interveners are tenants under the deity shall be decided in RSA No. 423 (sic) of 2003. 10. Mr. B.H. Mohanty, Learned Counsel appearing for the Appellant in this RSA, raised several contentions, but then in course of hearing being confronted with the problem that in the absence of any prayer for declaration of right, title and interest of the Plaintiff-appellant in the suit, the status of the Plaintiff could not be declared and that after vesting of the estate the lands had vested in the State under the provisions of the OEA Act free from all encumbrances and thereafter the same were settled in consonance with the OEA Act in favour of the Temple and that relying on such settlement the matter had been adjudicated by the Consolidation authorities who found that the Temple had right, title and interest of the Temple over the disputed property, and in view of settled position.of law that under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, the authorities have the jurisdiction to declare the right, title and interest in respect of lands of a person(s) and such determination is final. Further in view of the observation made by this Court in OJC No. 2219 of 2001 submitted that without entering into other issues, this RSA can be disposed of without interfering with the impugned judgment, but then protecting the possession of the Plaintiff-appellant. 11. Mr. Ratho, Learned Counsel for Defendant No. ll-Temple Managing Committee, vehemently objected to the latter submission contending that there is no concurrent finding as to who is in possession of the disputed lands and therefore no order can be passed to that extent. The same was also the contention of Mr. Routray appearing for Defendants 1 and 2. 12. So far as the Cross Objection filed by Defendants 1 and 2 is concerned, admittedly the decree of injunction passed against them in the suit has been confirmed in T.A. No. 9/11 of 2001/1992 which was filed by them. They never filed any appeal against the said decree. Routray appearing for Defendants 1 and 2. 12. So far as the Cross Objection filed by Defendants 1 and 2 is concerned, admittedly the decree of injunction passed against them in the suit has been confirmed in T.A. No. 9/11 of 2001/1992 which was filed by them. They never filed any appeal against the said decree. On the other hand the Plaintiff has filed this RSA against the decree vacating the order of injunction passed against Defendant No. 11-Sri Jagannath Temple Managing Committee. The ambit of this appeal is therefore very limited and is only confined to the decree vacating the order of injunction against Defendant No. 11. By filing a Cross Objection, Defendants 1 and 2 cannot expand the scope of this RSA filed by the Plaintiff. This Court therefore dismisses the Cross Objection. 13. After going through the counter-affidavits and the judgments of the courts below as well as judgment of this Court in the aforesaid Writ application as well as the evidence, both oral and documentary and considering the aforesaid submissions of the Learned Counsel for the parties, this Court is not inclined to interfere with the impugned decree passed in the Title Appeal filed by Defendant No. 11. It is needless to say that the decree of permanent injunction passed against Defendants 2 to 10 having not been assailed has attained finality. This Court, therefore, disposes of the RSA confirming the impugned decree, but with observation that the party found in possession of the disputed property shall not be dispossessed without due process of law. This Court grants liberty to the Appellant to seek declaration of his status in respect of the disputed property and in that event the court/authority concerned shall decide the issue strictly in consonance with law.