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2012 DIGILAW 338 (ORI)

Alekha Pradhan v. State of Orissa

2012-08-07

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J. - In this writ application the Petitioner challenges the Order Dated 04.11.1993 (Annexure 02/A) passed by the O.E.A. Collector-cum-Additional Tahasildar, Puri (Opp. Party No.8) in O.E.A. Claim Case No. 707 of 1989 directing for settlement of the case land along with other lands in favour of Sri Jagannath Mahaprabhu, Bije, Puri-Opp. Party No.2 & the Appellant Order Dated 28.11.2000 (Annexure-3) passed by the Additional District Magistrate, Puri in O.E.A. Appeal No.4 of 1996, Confirming the order of the O.E.A. Collector. 2. The case of the Petitioner as per the averments made in the writ application, the rejoinder & additional affidavits is as under: (a) The case land appertaining to Plot No. 1267, Ac. 3.12 under Khata No.1 in mouza-Samangara, P.S. Puri Sadar formed part of the 'SATESIHAZARI' estate of Sri Jagannath Mahaprabhu-Opp. Party No.2. It was a fallow sandy track of land & the Petitioner fenced the same & possessed it by planting casurina & cashewnut trees & also utilised a portion of the same for agriculture. Subsequently Opp. Party No.2 instead of taking any step for eviction of the Petitioner, fixed rent for his possession & collected the same at yearly interval & granted receipts. It is stated that since the Petitioner is a settled rayat of the village where the land situates, he acquired occupancy right over the case land by virtue of acceptance of rent & acknowledging the Petitioner as a tenant by Opp. Party No.2. (b) In the year 1987 some persons belonging to Goplapur Barapatna threatened & attempted to dispossess the Petitioner from the case land for which the Petitioner filed Title Suit No. 113/213 of 19901 1987-1 in the Court of Learned Munsif, Puri seeking relief of permanent injunction restraining the said persons from interfering with his possession over the case land. In the said suit the present Opp. Party No.2 (Sri Jagannath Mahaprabhu) was arrayed as proforma Defendant No. 11 While Defendant Nos. 1 to 10 contested the suit, Defendant No. 11 (Opp. Party No.2) filed a separate written statement admitting the possession of the Petitioner over the case land & receipt of rent from him. By Judgment dated 25.01.1992 (Annexure-2), the suit was decreed restraining the Defendants from entering into the case land & cutting & carrying away trees standing thereover. (c) Aggrieved of the Judgment passed in the suit, Opp. Party No.2) filed a separate written statement admitting the possession of the Petitioner over the case land & receipt of rent from him. By Judgment dated 25.01.1992 (Annexure-2), the suit was decreed restraining the Defendants from entering into the case land & cutting & carrying away trees standing thereover. (c) Aggrieved of the Judgment passed in the suit, Opp. Party No.2 filed Title Appeal No. 14 of 1992 in the Court of District Judge, Puri, which on transfer to the Court of the Learned Adhoc Additional District Judge (FTC-III), Puri was registered at Title Appeal No 26/14 of 2001/1992. Defendant Nos. 1 & 2 also filed separate Title Appeal No.9 of 2011 of 2001/1992. It is alleged that while the suit was pending before the Trial Court, Opp. Party No.2 filed Claim Case No. 707 of 1989 under Section 6 & 7 of the Orissa Estates Abolition Act (in short 'OEA Act') for settlement of the case land along with other lands in his favour & by Order Dated 04.11.1993 under Annecure-2/A the O.E.A. Collector-cum-Additional Tahasildar, Puri settled the land in favour of Opp. Party No.2 ignoring the finding of the Munsif in the title suit Judgment regarding the title & possession of the Petitioner. Aggrieved by the order of the O.E.A Collector, the Petitioner filed OEA Appeal NO.4 of 1996 before the Additional District Magistrate, Puri (Opp. Party No.9) who by his Order Dated-28.11.2000 (Annexure-3) illegally & arbitrarily dismissed the appeal & confirmed the order of the O.E.A. Collector. (d) The title appeal filed by Opp. Party No.2 was disposed of analogously with the title appeal filed by Defendant Nos. 1 & 2 by a common Judgment dated 05.08.2003 under Annexure-4, whereby the appeal filed by Opp. Party No.2 was allowed & the title appeal filed by Defendant Nos. 1 & 2was dismissed Challenging the Appellate Judgment passed in favour of Opp. Party No.2, the Petitioner filed R.S.A. No. 427 of 2003. (e) During the pendency of the title appeal, the Petitioner filed the present writ application. This writ application was initially disposed of on 19.06.2008 holding that Sri Jagannath Mahaprabhu-Opp. Party No.2 is deemed to be the owner of the disputed land, but the question as to whether the Petitioner or the intervenors are tenants under the deity shall be decided in the Regular Second Appeal. This writ application was initially disposed of on 19.06.2008 holding that Sri Jagannath Mahaprabhu-Opp. Party No.2 is deemed to be the owner of the disputed land, but the question as to whether the Petitioner or the intervenors are tenants under the deity shall be decided in the Regular Second Appeal. This finding was recorded on the assumption that the question of title to the disputed land had already been adjudicated by the Consolidation Authorities in favour of Opp. Party No.2. The operative portion contained in paragraph-3 of the order is quoted hereunder: "After going through the materials this Court finds that the Addl. District Magistrate, Puri has not committed any error in setting the lands in favour of Sri\Sri Jagannath Mahaparabhu, Bije, Puri. The question of title to the disputed land has also been adjudicated the Consolidation Authorities, vide Annexure-1. In view of the aforesaid faces, 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 invernvenors are tenants under the deity shall be decided in RSA No. 423 of 2003". (In the above order RSA No. 423 of 2003 has been wrongly typed in place of RSA No. 427 of 2003). (f) After disposal of the writ application as aforesaid, RSA No. 427 of 2003 was disposed of by Judgment dated 23.10.2008 confirming Judgment of the lower Appellate Court passed in favour of Opp. Party No.2 with further observation that the party found in possession of the disputed property shall not be dispossessed without due process of law & liberty was granted to the Appellant (Writ Petitioner) to seek declaration of his status in respect of the disputed property before the competent Court/authority. Operative portion of the Judgment of the second appeal inparagraph-14 thereof reads as under: "After going through the counter-affidavits & 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 & documentary & 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 field 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 & in that event the Court authority concerned shall decide the issue strictly in consonance with law." 3. In the meantime, the Petitioner filed RVWPET No. 118 of 2008 for reviewing the Order Dated 19.06.2008 passed In this writ application on the ground that the said order was passed on the wrong assumption by the Court that the title of Opp. Party No.2 (Sri Jagannath Mahaprabhu) has been adjudicated by the Consolidation Authorities, who have the jurisdiction to do so. The review was allowed & this writ application was revived by Order Dated 29.01.2010 for fresh hearing & disposal. Simultaneously, the Petitioner had also field RVWPET No. 205 of 2008 for reviewing the Judgment passed in the second appeal which had primarily been based on the earlier final order 19.06.2008 passed in this writ application. RVWPET No. 205 of 2008 was disposed of by Order Dated 09.02.2012 directing only deletion of paragraph-10 of the Judgment in RSA No. 427 of 2003. However, the operative portion in paragraph-14 of the Judgment in the second appeal & other findings were not interfered with. Thus, the Judgment in the second appeal except paragraph-10 thereof has become final & binding on the parties. 4. It is the contention of the Learned Counsel for the Petitioner that in the suit Opp. Party No.2 admitted the possession of the Petitioner over the disputed land as tenant in respect thereof & receipt of rent from him, & that on the basis of such admission both the Trial Court & the lower Appellate Court in the title suit & in the title appeal have found possession in favour of the Petitioner &, therefore, passed decree of injunction against Defendant Nos. 1 to 10 &, therefore, the land cannot be said to be in possession of Opp. 1 to 10 &, therefore, the land cannot be said to be in possession of Opp. Party No.2 on o the date of vesting & as such the original as well as the Appellant authorities under the O.E.A. Act have gone wrong in directing for settlement of the land in favour of Opp. Party No.2, the Deity under Section 7 of the O.E.A. Act. Ii is also contended by him that though the question of status of the Petitioner as Bhagchasi under Opp. Party No.2 was .held to be not entertainable by the lower Appellate Court in the title appeal, in view of admission by Opp. Party No.2 in the written statement about such status of the Petitioner, the Petitioner would automatically become a tenant under the State from the date of vesting by operation of law under Section 8 (1) of the O.E.A. Act &, therefore, the OEA authorities went wrong in settling fair & equitable rent in respect of the land in favour of Opp. Party No.2. 5. It is the contention of the Learned Counsel for Opp. Party No.2 that question of title to the disputed land was not an issue &, therefore, the finding of the Trial Court in this respect was set aside by the Lower Appellate Court & that the admission of Opp. Party No.2 in the written statement in the suit was only to the limited extent that the Petitioner was in charge of the disputed property by way of lease only for a period of five years which came to an end since long & that on the date of vesting in the year 1974, the Petitioner was not in possession of the property. 6. There is no quarrel over the proposition that for a settlement under Section 7 of the OEA Act, it is necessary to find out if the intermediary was in khas possession over the land in question on the date of the vesting. It appears from the order of the OEA Collector under Annexure-2/A that general proclamation inviting public objection was issued in OEA Case & that no objection was received from any quarters resisting the claim of Opp. Party No.2 for settlement. It is, therefore, apparent that the present Petitioner did not appeal before the Additional District Magistrate challenging the settlement made in favour of Opp. Party No.2 for settlement. It is, therefore, apparent that the present Petitioner did not appeal before the Additional District Magistrate challenging the settlement made in favour of Opp. Party No.2, mainly contending that in the OEA Case no notice by way of proclamation was issued inviting public objection. Apart from the above ground, before the Additional District Magistrate the Petitioner also raised the claim that he has acquired occupancy right being in possession of the disputed land as a tenant under Opp. Party No.2 as per finding in the Title Suit. The Additional District Magistrate has stated in his order that confirming occupancy right of the Petitioner by the Civil Court over the disputed land (vested land) was without jurisdiction as per Section 39 of the O.E.A. Act, without being alive to the fact that the suit of the Petitioner was for permanent injunction simplicitor against Defendant Nos. 1 to 10 & not against Defendant No. 11 (the present Opp. Party No.2). Indisputably declaration of occupancy right of the Petitioner by the Learned Munsif was beyond the scope of the suit & the said finding & declaration has been set aside by the Learned over Appellate Court in Title Appeal No. 213 of 1987. Of course, for the purpose of grant of injunction against Defendant Nos. 1 to 10 both the Munsif & the lower Appellate Court found possession in favour of the Plaintiff But the question whether on the date of vesting of the property the Plaintiff was in possession or Opp. Party No.2 was in possession, has not been directly addressed by the Civil Court. The finding of possession in favour of the Petitioner by the Civil Court was primarily based on the admission of Opp. Party No.2 in its written statement filed in the suit, wherein no relief at all was claimed against Opp. Party No.2. Undoubtedly admission is the best piece of evidence against the maker thereof but it is always explainable in any other proceeding. The original authority, i.e., the O.E.A. Collector has never considered the claim of Opp. Party No.2 vis-a-vis the objection of the Petitioner. 7. In the aforesaid circumstances, it is in the fitness of things that the matter should be remanded back to the O.EA Collector, Puri to decide the question of settlement of the property in favour of Opp. Party No.2 afresh. 8. Party No.2 vis-a-vis the objection of the Petitioner. 7. In the aforesaid circumstances, it is in the fitness of things that the matter should be remanded back to the O.EA Collector, Puri to decide the question of settlement of the property in favour of Opp. Party No.2 afresh. 8. Accordingly, we set aside the orders passed by the O.EA Collector & the Additional District Magistrate, Puri under Annexure2/A and 3 respectively & remand the matter back to the OEA Collector, Puri to decide the claim application of Opp. Party No.2 afresh giving opportunity of hearing to both, Opp. Party No.2 an the Petitioner after considering all evidences or materials to be produced by the parties in respect of their respective claims. The writ application is accordingly disposed of. No costs. Appeal disposed of.