Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 712 (ORI)

SACHIDANANDA ROUT v. STATE OF ORISSA

2010-10-25

B.P.RAY

body2010
JUDGMENT : B.P. Ray, J. - Aggrieved by an order passed by the Commissioner, Land Record and Settlement in a proceeding u/s 15 of the Orissa Survey and Settlement Act in R.P. No. 3307 of 1997 dated 6.10.1997 under Annexure-8, the petitioner has filed this writ application. 2. According to the petitioner, the suit land appertains to Mouza Cuttack Sadar, Unit No. 23, Khata No. 975 consisting of Hal Plot Nos. 1148, 1149 and 1.153 with an area of Ac. 0.172 decimals. Originally the land belongs to one Motilal Pandit who was the landlord. Under him one Paramananda Senapati was the tenant Pattadar and under him one Jema Bewa was the sub-tenant (Darpattadar). The Pattadar failed to pay the rent to the landlord for which rent suit was filed against the legal heirs of the pattadar, namely, Satyabadi Senapati and Maina Dei by the landlord. In the said case, a decree was obtained and the decree was put to auction which was purchased by one Bharamarbar Senapati and sale was confirmed on 30.9.1955. The intermediary interest vested with State Government under Orissa Estate Abolition Act, 1951 vide Notification dated 14.9.1953 free from all encumbrances. Thus, admittedly before the sale was confirmed the estate vests with the Government. During settlement operation the land in question was finally recorded in favour of the petitioner which was published on 13.3.1992. 3. After publication of the final Record of Rights in favour of the petitioner, the opposite party Nos. 3 to 5 filed an application in the year 1997 u/s 15 of the Orissa Survey Settlement Act for correction of ROR to record the land in their favour before the Commissioner, Land Record and Settlement. 4. The case of the opposite party Nos. 3 to 5 before the Commissioner Land Records and Settlement is that the case land originally belongs to one Motilal Pandit who was the landlord. Under him one Paramananda Senapati was the pattadar. As the said pattadar failed to pay the rent to the landlord a rent case was filed by the landlord against the son and daughter of Paramananda Senapati, namely, Satyabadi Senapati and Maina Dei for realization of rent. A decree was obtained and the properties were put to Court auction which was purchased by the vendor of opposite party Nos. 3 to 5 namely, Brahmarabar Senapati. He got delivery possession through Court on 26.5.1956. A decree was obtained and the properties were put to Court auction which was purchased by the vendor of opposite party Nos. 3 to 5 namely, Brahmarabar Senapati. He got delivery possession through Court on 26.5.1956. While he was in possession he sold the land to opposite party Nos. 3 to 5 on 29.9.1966 and delivered the possession. Since then they are in possession of the case land. 5. The case of the petitioner before the Settlement Authority is that Jema Bewa, the Darpatadar under Paramananda Senapati (Pattadar) while in possession of the land and house standing thereon has sold the same in favour of one Bali Bewa by a registered sale deed on 22.9.1938 and delivered the possession. On 27.10.1952 Bali Bewa in her turn sold the land along with the thatched house by a registered sale deed in favour of Bilas Bala Dei who is the aunt of the petitioner and delivered the possession. From the date of purchase Bilasbala possessing the house and while in possession she has executed a registered gift deed in favour of the petitioner on 12.1.1988 and 6.4.1988. Further case of the petitioner is that the aunt of the petitioner regularly paying municipal tax and electricity bill. After the land was gifted to the petitioner, he has mutated the land in his name. The Settlement authority considering the relevant document and the notification bearing No. 86/97-6983/R dated 24.9.1979 has finally recorded the land in favour of the petitioner which was published on 13.3.1992. Since then the petitioner is regularly paying rent to the Government. While the matter stood thus, in the year 1997 after 5 years of final ROR the opposite party Nos. 3 to 5 having no manner of right, title and interest and possession, have filed a revision u/s 15 of the OSS Act before the opposite party No. 2 for correction of ROR which is barred by limitation. 6. The further case of the petitioner is that the rent suit was filed against the pattadar, namely, Satyabadi Senapati and Maina Dei the legal heir of original pattadar late Paramananda Senapati without impleading the darpattadar, i.e., Jema Bewa and subsequent purchasers who were admittedly on the date of purchase by the opposite party Nos. 3 to 5 are in actual physical possession of the case land the possession of the opposite party Nos. 3 to 5 are in actual physical possession of the case land the possession of the opposite party Nos. 3 to 5 can not be taken into consideration. Therefore, the decree and execution is not binding on the persons who are in actual possession of the case, land. The auction purchaser has not got delivery possession. The petitioner before him the purchasers are in peaceful possession of the land. The alleged delivery of possession is a paper transaction and at best amount to symbolical delivery possession as no delivery of possession has been given after evicting the darpattadar, i.e., the tenant. The vendor of opposite party Nos. 3 to 5 have purchased the only occupancy right of defaulting tenant what is sold is not the interest of the landlord nor any charge which the landlord may enjoy. The purchaser of sale steps into shoes of the defaulting tenant and Jema Bewa the original vendor continue to be the subtenant under the auction purchaser, hence, the question of delivery of possession to opposite party Nos. 3 to 5 does not arise. 7. It is further contended that the suit land and the structure standing thereon being in possession of the petitioners vendor as well as with the petitioner benefit u/s 236 of the Orissa Tenancy Act is available to him and conferred protection from eviction in respect of homestead. The Act is of retrospective effect so far as the present litigation is concerned because since 1932 Jema Bewa thereafter Buli Bewa and aunt of the petitioner were residing in the thatched house over the suit plot till it is recorded as stitiban raiyat by operation of law in favour of the petitioner. 8. The Commissioner of Land Records and Settlement on hearing the parties and on perusal of documents has held that the transferee made by the darpattadar before amendment Act, 1946 of the Orissa Tenancy Act is not valid. Once the suit is put to auction sale for non-payment of rent and delivery of possession made over the auction purchaser all the persons including the tenant/sub-tenant are deemed to be evicted and valid title is accrued in favour of the auction purchaser. Hence, the vendor of the opposite party Nos. 3 to 5 being the title holder of the suit land, sold the same in their favour. Hence, the vendor of the opposite party Nos. 3 to 5 being the title holder of the suit land, sold the same in their favour. In absence of any valid title the name of the petitioner is deleted and directed to record the name of the opposite party Nos. 3 to 5 as sthitiban raiyat. Hence, allowed the revision. 9. During the course of hearing, learned counsel for the petitioner has urged that the suit property is a intermediary interest which vests with the Government under the Orissa Estate Abolition Act, 1951 vide notification dated 14.9.1953. The confirmation of sale was made on 13.9.1955, i.e., much after the vesting. Hence, the sale became infructuous and all rights under the decree extinguished by operation of law. 10. The second contention of the counsel for the petitioner is that the suit was filed by the landlord for realization of arrear rent from his pattadar. The rent suit was decreed against the pattadar which was put to auction and the auction purchaser only purchased the occupancy right of the defaulting tenant. He can not steps into the landlord's shoes but become a tenant under the landlord. What is sold, is not an interest of landlord nor any charge which landlord may enjoy. The purchaser at the sale steps into the shoes of the defaulting tenant. Thus, he acquires the interest of the defaulting tenant and no right, title transfers in favour of the auction purchaser. The said pattadar right being vests with the Government under the Orissa Estate Abolition Act free from all encumbrances, the vendor of the opposite party Nos. 3 to 5 has no salable right to sell the land in question in their favour. 11. It was further contended that the petitioner's vendor right has been protected u/s 236 of the Tenancy Act eviction from of a homestead. The said right became absolute by operation of law, i.e., by the Notification of the Revenue Department of the State Government bearing No. 86/97-69683/R dated 24.9.1979. The auction purchaser has also not exercised his power annul the encumbrances the manner provided u/s 221 of the Orissa Tenancy Act within the statutory period. That view of the matter, the petitioner as well as his vendor continued in continuous, uninterrupted possession over the suit property till date. The auction purchaser has also not exercised his power annul the encumbrances the manner provided u/s 221 of the Orissa Tenancy Act within the statutory period. That view of the matter, the petitioner as well as his vendor continued in continuous, uninterrupted possession over the suit property till date. The petitioner has also filed a copy of the passbook issued by the Revenue Department on 22.1.2006 wherein the case land has been recorded in favour of the petitioner. On these above contentions, the learned counsel for the petitioner prays to quash the impugned order. 12. Mr. S.P. Mishra, learned Senior Counsel appearing for the opposite party Nos. 3 to 5 supported the impugned order and contended that since the original pattadar failed to pay the rent, the property was put to auction and their vendor was the auction purchaser. He has also got delivery of possession of the disputed property on 26.5.1956. He being the rightful owner of the property, sold the land to the present opposite party Nos. 3 to 5 by a registered sale deed on 29.9.1966 and delivered possession to them. The opposite party Nos. 3 to 5 after purchase became the rightful owners of the land. He further contended that the subtenant i.e., Jema Bewa the original vendor of the petitioner has neither heritable nor transferable right. Hence, the entire transaction can not be stand in the eye of law. Since the delivery of possession has been given to their vendor under a Court sale question of possession of the present petitioner are all confronted. 13. In view of the rival contentions of the parties, this Court is to examine the effect of the abolition of the estate under the Orissa Estate Abolition Act, the effect of the decree and execution of a rent suit and most importantly the question of possession. 14. Admittedly, the estate vests to the Government free from all encumbrances vide notification dated 19.9.1953 under the Orissa Estate Abolition Act. The effect of abolition of the estate under the Orissa Estate Abolition Act is provided u/s 5(e)(f) of the said Act. 14. Admittedly, the estate vests to the Government free from all encumbrances vide notification dated 19.9.1953 under the Orissa Estate Abolition Act. The effect of abolition of the estate under the Orissa Estate Abolition Act is provided u/s 5(e)(f) of the said Act. For better appreciation Section 5(e)(f) is extracted herein below:- 5(e)- No suit shall lie in any Civil Court in respect of any money due from such intermediary the payment of which is secured by a mortgage or is a charge on such estate and all suits, executions and other proceedings in respect of the mortgage or charge which may be pending on the date of vesting shall be dropped. Provided that in case of suits, executions and other proceedings referred to above in which the validity of the claim under the mortgage or the charge is disputed by the intermediary the said Court shall, instead of dropping such suits, hear and dispose them of. (f) No such estate shall be liable to attachment or sale under the processes of any Court and any order of attachment passed in respect of such estate prior to the date of vesting shall, with effect from the date of vesting cease to have any effect. 15. In the present case estate was abolished on 14.9.1953 and the auction sale was confirmed was much after the vesting i.e., 13.9.1955. As per Section 5(e) of the Act which is clearly prohibitory Section makes a sale which are taken place but not confirmed ineffective and nugatory. Confirmation sale is an integral part of transaction of sale and without confirmation the purchaser acquired no title. The sale which has taken place could not confirm because, as a consequence of vesting no estate shall be liable to sale as provided u/s 5(f) of the Orissa Estate Abolition Act. The above question was considered by this Court in the case of Sri Vidya Sagar Vs. Smt. Sudesh Kumari and Others, : AIR 1975 SC 2295 (Bidyasagar V. Smt. Sudesh Kumari). 16. The apex Court as well as this Court while considering Section 5(e) and (f) of the said Act have held that sale of an estate held prior to vesting but confirmed after vesting, the sale became infructuous. It was further held that until the sale is confirmed the auction purchaser acquires no tile. 16. The apex Court as well as this Court while considering Section 5(e) and (f) of the said Act have held that sale of an estate held prior to vesting but confirmed after vesting, the sale became infructuous. It was further held that until the sale is confirmed the auction purchaser acquires no tile. Therefore, it is sufficient for the present purpose the sale which was taken place could not be confirmed because as a consequence of vesting no estate shall be liable to be sale. In the present case the sale was before vesting and it was confirmed after vesting. Hence, the decree is incapable of execution by operation of law. The whole property because extinct and the property including the decree holder and nothing left with them after the property vested in the state. Therefore, the decree could not be executed. On the above position of law and analogy made in the aforesaid decisions the auction purchaser, i.e, the vendor of the opposite party Nos. 3 to 5 has not right to sold the property in their favour on 28.9.1966. 17. It is also undisputed that the suit was for realization of arrear rent which the pattadar failed to pay to the landlord, which was decreed and the vendor of opposite party Nos. 3 to 5 are the auction purchaser. The landlord i.e., namely, Motilal Pandit filed the suit against Satyabadi Senapati and Maina De and got a decree which was put to auction and the vendor of opposite party Nos. 3 to 5 have purchased the same. 18. It is also well settled position of law that a suit filed for realization of arrear rent the auction purchaser only purchases the pattadary right nothing more nothing less. The purchaser at sale held in execution of arrear rent does not step into the landlords shoes but became a tenant of the landlord. What is sold is not an interest of the landlord nor any charge which the landlord may enjoy, but the occupancy right of the tenant and the purchase at sale step into the shoes of the defaulting tenant. The purchaser acquires the interest of defaulting tenant, he has also power to annul encumbrances which he may have created, but the power to annul shall be exercisable, in a manner provided u/s 221 of the Orissa Tenancy Act. The purchaser acquires the interest of defaulting tenant, he has also power to annul encumbrances which he may have created, but the power to annul shall be exercisable, in a manner provided u/s 221 of the Orissa Tenancy Act. This view is support from a decision reported in IV 1938 CLT 44 (Saraswati Devi V. Rama Krushna Das and Others.) 19. It is not the case of the opposite party Nos. 3 to 5 that their vendor has ever exercised his right provided u/s 221 of the Orissa Tenancy Act within the time stipulated under the said Act. Their vendor/auction purchaser has only purchased the pattadary right and became pattadar under landlord till the estate vests with the Government. The said auction purchaser has neither exercised his power to annul the encumbrances in the manner provided u/s 221 of the Orissa Tenancy Act nor got delivery of possession till the estate abolished with the Government. Thus, the darpattadar and the subsequent purchaser remained in possession of the case land uninterruptedly continuously and after them the petitioner is in continuous possession of the land. 20. The Settlement authority lacks jurisdiction to adjudicate upon the question of title. But for the purpose of the revenue records, the Record of Right is prepared and the law attaches the presumption of correctness to the entries made therein. In the present case the opposite party No. 2 has unnecessarily gone into the question of title to which he lacks jurisdiction and the said question of title has been erroneously decided. While deciding the revision the Commission has not taken into consideration the notification of the revenue department of the State Government bearing No. 86/97-69683/R dated 24.9.1979 issued to all the settlement authorities regarding acquisition of raiyati right over homestead to operation of Section 236 of the Orissa Tenancy Act read with Section 41 (a) of the OLR Act, 1966. The tenant holding homestead land on the date of commencement of OLR Act and recorded as sikkim and chandana in the ROR be recorded as sthitiban raiyat during current settlement proceeding. Thus by virtue of the sad notification Asst. Settlement Officer has right recorded the land in favour of the petitioner. Accordingly, the order under Annexure-8 passed by the Commission of Settlement and Land Records in R.P. Case No. 3307 of 1997 is illegal, perverse and suffers from material irregularity which calls interference by this Court. Thus by virtue of the sad notification Asst. Settlement Officer has right recorded the land in favour of the petitioner. Accordingly, the order under Annexure-8 passed by the Commission of Settlement and Land Records in R.P. Case No. 3307 of 1997 is illegal, perverse and suffers from material irregularity which calls interference by this Court. Hence, the impugned order under Annexure-8 is quashed and the order of Asst. Settlement Authority is restored. 21. In the result, the writ petition is allowed. No costs. Final Result : Allowed