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2012 DIGILAW 62 (ORI)

Sudarsan Panda v. B. D. O. Narasinghpur

2012-02-01

B.K.NAYAK

body2012
JUDGMENT B. K. NAYAK, J-Both the appeals have been filed against part Judgment & decree passed by the First Additional District Judge, Cuttack in Title Appeal No.91/93 of 1983/1986 arising out of the Judgment & decree dated 26.07.1983 & 30.07.1983 respectively passed by the Sub-Ordinate Judge, Athagarh in Title Suit No.9 of 1980. Therefore, both the appeals were heard analogously & are being disposed of by this common Judgment. The Plaintiffs in the suit are Appellants in Second Appeal No.204 of 1987 whereas as Defendant Nos.5, 6 & 7 are the Appellants in Second Appeal No. 225 of 1988. 2. The Plaintiffs filed the suit in representative capacity for themselves & on behalf of the villagers of their village-Lembo claiming right, title & interest over the suit tank measuring about Ac. 30.00 acres & for confirmation of their possession & for permanent injunction restraining the Defendants from interfering in their possession. It is the case of the Plaintiffs that the suit tank locally knows as 'Gadei Panda Bandha' was excavated by Gadei Panda of village-Lembo, a philanthropist, with the help of other villagers over 'A' schedule land measuring Ac.15.78 decimals in the year 1900. The villagers of Lembo used the water of the tank for the purpose of irrigation, bathing & pisciculture & they have been in possession of the same as of right since then. The suit 'B' schedule land measuring Ac.13.62 decimals belonging to villagers of Badabarana submerged in the water of the suit tank excavated on schedule 'A' land & the villagers of Lembo gave their Stitiban land measuring Ac.13.21 decimals described in schedule 'C' of the plaint in exchange of schedule 'B' land. The subsequent claim of Defendant Nos.5 to 7 of village-Badabarana for getting further land from the Plaintiffs in exchange was turned down by the then Darbar Administration of Narasinghpur State. However, the Plaintiffs paid compensation for the excess land of village-Badabarana to Chinta Naik & others of the said village in Revenue Case No.43 of 1932-33. Therefore, the suit tank exclusively belongs to the villagers of Lembo & they have got right, title & interest over the same. Alternatively, they have perfected their right, title & interest by adverse possession. The Ex-ruler of Narasinghpur & the Defendants have never interfered in the Plaintiffs' possession over the suit tank. Therefore, the suit tank exclusively belongs to the villagers of Lembo & they have got right, title & interest over the same. Alternatively, they have perfected their right, title & interest by adverse possession. The Ex-ruler of Narasinghpur & the Defendants have never interfered in the Plaintiffs' possession over the suit tank. The Plaintiffs have been exercising their right of ownership, possession, bathing, irrigation & pisciculture over the suit tank without any hindrance & maintaining accounts in relation to pisciculture & maintenance of the tank. At the instance of Plaintiff No.1 unauthorised, occupants were evicted from a portion of the suit tank in the year 1951 by Defendant No.3, the Collector, Cuttack. On 05.05.1977 Defendant Nos. 1 & 2, & 2, viz, Sarpanch Alara Grama Panchayat & Block Development Officer, Narasinghpur made paper transactions showing auction of the suit tank in favour of Defendant No.4 which is illegal. 3. Defendant Nos. 2 & 3 filed a joint written statement. Defendant Nos.1, 5, 6 & 7 adopted the written statement filed by Defendant Nos.2 & 3. The case of the Defendants is that the suit tank measuring Ac.30.78 decimals belongs to the State, who exercised control & possession over the same since the time of Darbar Administration, which has been recorded in the name of the Government. They denied the Plaintiffs' claim of title, possession & right of pisciculture over the tank & its excavation by Gadei Panda' of village-Lembo. It is stated that about the year 1887 one old existing Bandha was renovated & developed & a high embankment was raised at a cost of Rs.600 out of which Darbar Administration spent RS.500 & the villagers of Lembo contributed Rs.100 by way of imposition of levy. It is stated that there is no mention of the name of 'Gadei' Panda' in the R.O.R & it is not known as to why the tank is locally called 'Gadei Panda Bandha'. It is stated further that as a result of improvement & development, about Ac.15.00 of additional land of villagers of Badabarana got sub-merged in the water of the tank rendering it unfit for cultivation. The suit land belongs to the Government which exercised control & possession over the same & there is no obstruction for any body to take bath in the Bandha. Villagers of Badabarana, limbo & other surrounding villages get water from the Bandha, for irrigation purpose. The suit land belongs to the Government which exercised control & possession over the same & there is no obstruction for any body to take bath in the Bandha. Villagers of Badabarana, limbo & other surrounding villages get water from the Bandha, for irrigation purpose. Plaintiffs have no right of pisciculture, irrigation & bathing as claimed by them. For the first time, Plaintiffs have advanced a right to pisciculture in the suit tank & not at any time before. The tank has been transferred to Alara grama Panchayat in the year 1963, after re-organisation of the Grama Panchyat. The transfer of the tank has been confirmed vide letter dated 12.2.1969 of S.D.O. Athagarh. The Grama Panchayat having the fishery right over the tank, it was put to auction sale on 05.05.1977 after due notice to all. In the auction sale held by the B.D.O., Defendant No.4 Rama Chandra Panda, Prasana Kumar Panda & Trilochan Panda, all of village-Lembo, took part in the auction & Defendant No.4 became the highest bidder for Rs.50, but on account of low bid amount it was not accepted. The tank was re-auctioned on 02.07.1977 in which Defendant No.4 of village-Lembo, Sadananda Biswal of village-Nandakishorpur & Chaitari Naik of village-Badabarana were bidders & Defendant No.4 became the highest bidder for Rs.210 & he deposited the bid amount on 04.07.1977. Claim of the Plaintiffs to have created common fund out of pisciculture is not correct. No regular pisciculture was being carried on in the Bandha prior to 1963 when it was transferred to Grama Panchyat. Rain water from the mountains flows down to the tank & escapes through 'fera', on account of which stray fish accumulated in the Bandha during rainy season. As per custom, during summer when water of the Bandha dries up people of the surrounding villages used to catch fish after paying 1/8th of the catch to the palace. In the year 1957-58, the State Government sanctioned a sum of Rs.10,000 for development of the Bandha under the scheme for development of Minor Irrigation Projects. Late Harihar Raiguru, father of Plaintiff No.1 & Plaintiff Nos.3 & 5 were appointed as members of committee constituted & executed all development works. During the period between 1957-58 & 1958-59 a total sum of Rs.6.495 was spent from the sanctioned amount under the supervision & control of the State Officers & the unspent amount of Rs.3,505 was refunded. Late Harihar Raiguru, father of Plaintiff No.1 & Plaintiff Nos.3 & 5 were appointed as members of committee constituted & executed all development works. During the period between 1957-58 & 1958-59 a total sum of Rs.6.495 was spent from the sanctioned amount under the supervision & control of the State Officers & the unspent amount of Rs.3,505 was refunded. The claim of the Plaintiffs to have spent money for repair of tank was denied. Thus, the Plaintiff's claim of ownership & possession over the suit was stated to be misconceived & ill founded. The suit was also resisted on other technical grounds, such as, non-service of valid notice under Section 80, C.P.C & undervaluation of the suit On the pleadings of the parties, the Trial Court framed five issues & decreed the suit with the findings that the Plaintiffs have got right, title & interest over the suit Bandha & that they exercise right of ownership & possession over the same for all purposes. 4. Defendant Nos.2 & 3, viz, the B.D.O., Narasinghpur & Collector, Cuttack & Defendant Nos. 5, 6 & 7, who are the villagers of Badabarana filed Title Appeal challenging the Judgment & decree passed by the Trial Court. The title appeal was heard & partly allowed by the Learned Additional District Judge, Cuttack vide his Judgment dated 30.04.1987 holding that the Plaintiffs have no right of ownership over the suit tank, but the villagers of Lembo represented through the Plaintiffs have got exclusive right of fishery over the suit tank by prescription & that cannot be interfered with by the state Authorities. In support of his decision, the lower Appellate Court reached the following conclusions in paragraph-17 & 18 of its Judgment. "17. On an analysis of the oral & documentary evidence adduced by the parties, the following features emerged. (1) The origin of the suit tank is lost in antiquity; & there is no evidence either oral or documentary regarding its excavation by Gadei Panda. (2) The suit tank is locally known as 'Gadei Panda Bandha.' (3) The suit tank is situated in the border of village Lembo & village-Badabarana. (4) The suit tank consists of thirty acres of land out of which A.15.00 & old belong to the Government & Sch-B land measuring A.13.62 dec. (2) The suit tank is locally known as 'Gadei Panda Bandha.' (3) The suit tank is situated in the border of village Lembo & village-Badabarana. (4) The suit tank consists of thirty acres of land out of which A.15.00 & old belong to the Government & Sch-B land measuring A.13.62 dec. of land of villagers of Badabarana submerged in the water of the tank was given in exchange for the development of he suit tank in respect of the Sch-C land belonging to the villagers of Lembo consisting A.12.21 decimals & the villagers of Lembo also paid the compensation for the balance land in the shape of money to villagers of Badabarana. (5) The right of ownership of the suit tank remains with the Ex. State Narasinghpur till the merger & thereafter with the present State Government; (6) The villagers of Lembo being the beneficiaries of the suit tank used to enjoy the right of irrigation, bathing & fishery on the suit tank since time immemorial i.e. from the premerger days till 1977 when the suit tank was transferred to the panchayat & there was auction sale by the Panchayat in 1977. (7) The villagers of Lembo, the Darbar administration & the State Government made improvements to the suit tank. 18. It is not the Plaintiff's case that they have right of ownership over the suit tank by way of any grant. They claim their title over the suit tank by adverse possessions & by long user by way of prescription. The facts & circumstances go to show that the Plaintiffs being user & enjoyment of the tank by taking water for irrigation, bathing & pisciculture since the premerger days, they have been able to establish their said right over the suit tank by way of prescription which was recognised by the State. The Plaintiffs have sacrificed their valuable stitiban/land in exchange & also given contribution for the improvement of the suit tank during Darbar Administration but this is not sufficient to confer right of ownership of the suit tank on the Plaintiffs as they have done so as beneficiaries of the suit tank & for their own benefit for using the water of the tank for irrigation, bathing & enjoying the fishes of the tank." 5. Against the part of the decree refusing to declare the right, title & interest of the Plaintiffs over the suit land, Second Appeal No.204 of 1987 has been filed by the Plaintiffs whereas against the part of the decree declaring the exclusive right of fishery of the Plaintiffs over the suit tank, Second Appeal No.225 of 1988 has been filed by Defendant Nos.5, 6 & 7. 6. Second Appeal No.225 of 1988 has been admitted on the following substantial question of law: "Whether community can have an easement right by long continuance of exercise of a particular right." Vide Order No.3 dated 26.09.1987, Second Appeal No.204 of 1987 has been admitted on ground Nos. 5(a), (b) & (c) as indicated in the memo of appeal, which are as follows: “(a) Whether in view of his own finding to the effect that the villagers of Lembo being the beneficiary of the suit tank used to enjoy the right of irrigation, bathing & pisciulture on the suit tank by prescription since time immemorial i.e., from the time of Durbar Administration indefeasible title in favour of the Plaintiffs should have been recorded. (b) Whether the right of ownership of the suit tank remains with the villagers of Lembo or with the ex-State of Narasinghpur till the merger & thereafter with the present State Government is no more in dispute in view of his own analysis to the effect :- The suit tank consists of thirty acres of land, out of which A.15.00 & odd belong to the Government & Schedule B land measuring A.13.62 dec. of land of villagers of Badabarana sub-merged in the water of the tank was given in exchange for the Development of the suit tank in respect of the Schedule C. Land belonging to the villagers of Lembo consisting A.12.21 decimals & the villagers of Lembo also paid the compensation for the balance land in shape of money to villagers of Badabarana. (c) Whether the Plaintiffs have established their right over a portion measuring A.15.00 of the suit tank by means of adverse possession is no longer in dispute in view of the finding 'the suit tank is locally known as Gadei Panda Bandha' because the 'name' itself is a positive proof of the ownership & unless the Plaintiffs aforesaid predecessor was admittedly the owner, his name would not have been recorded in RO.R of the then mighty durbar Administration & so far as other portion of the tank measuring Ac.13.62 which admittedly exists on Plaintiffs stitiban lands the Court was bound by law to record a finding of title in favour of the Plaintiffs. 7. The Plaintiffs claim title to the suit land on the assertions that part of the suit tank appertaining to Schedule 'A' land was excavated by Gadei Panda of village-Lembo, a philanthropist, & the other part appertaining to suit 'B' schedule land belonging to the villagers of Sadabarana was exchanged by giving land of villagers of Lembo appertaining to schedule 'C' land & also by payment of compensation by them for the excess land of village-Sadabarana. Alternatively title is claimed by adverse possession for exercising the exclusive right of irrigation, bathing & pisciluture by villagers of Lembo. As has been found by the lower Appellate Court, the final Court of facts, there is no acceptable evidence that the suit tank was excavated by Gadei Panda in the year 1900 or at any point of time, as asserted by the Plaintiffs, though the tank is locally known as 'Gadei Panda Bandha'. Merly because the tank is locally described as 'Gadei Panda Bandha' or named as such, that cannot gave rise to a presumption that it was excavated by Gadei Panda. It is common knowledge that the times public properties such as roads, streets, chowks & tanks etc are named after some important persons. That, however, does not vest any right or title in such property with the person concerned or with the inhabitants of the locality where such person resided. There is also no evidence that the suit tank was excavated on any royati land of the villagers of Lembo although nearly half of the suit tank in question situated inside the Revenue village of Lembo. There is also no evidence that the suit tank was excavated on any royati land of the villagers of Lembo although nearly half of the suit tank in question situated inside the Revenue village of Lembo. Therefore, it cannot be said that the villagers of Lembo have title of the suit tank as because it has been described as 'Gadei Panda' Bandha'. 8. It appears from the evidence of the record & also found by the lower Appellate Court that the suit tank originally comprised rightly of Ac.15.00 of land appertaining to village-Lembo but subsequently about 15 acres of land of some raiyats of village-Badabarana got submerged which was amalgamated with the original tank, for which Ac, 13.62 of land of village-Lembo was given in exchange to the persons whose land got submerged in the water of the tank. It is the evidence of PW.3 (Plaintiff No.2) which has been taken note of by the lower Appellate Court that the original Ac. 15.00 & odd of the suit tank belonged to the Government. 9. In order to decide the disputed rights of the parties over the suit tank, it is necessary to refer to the Narsinghpur Tenancy & Revenue Rules, 1938 which makes provision with regard to the nature of right, which a rayat or tenant can exercise in respect of tank, water reservoir & Government properties. Rule-5 of the Rules gives classification of tenants & rayats. A rayat is included within the definition of tenant. Apart from rayats holding rent free lands there are two other categories of rayats, namely, Thani' & 'Pahi' rayat. 'Thani' rayats are residents of village itself having right of occupancy in the land held by them in the village. A Pahi rayat is one having right of occupancy in the land held by him in the village though he is not a resident of village where he holds land. A rayat is a person, who holds land for the purpose of cultivation by himself or by members of his family or by hired servants or with the aid of partners with the express sanction of the State & also includes the successor-in-interest of the rayat. A rayat is a person, who holds land for the purpose of cultivation by himself or by members of his family or by hired servants or with the aid of partners with the express sanction of the State & also includes the successor-in-interest of the rayat. Under rule 16(1) of the Rules a Thani or Pahi may use the land in any manner which does not materially impair the value of land or render it unfit for the purpose of tenancy & he has the right to use water of the tank & bandha standing on such land for irrigation purpose & appropriate the fish without express sanction of the authority of the State. Under Rule 16(4) all orchard on Sarkari lands & water reservoirs being the sole property of the State, a rayat can lay no claim to the same, A tenant can excavate any tank or Bandha on the land belonging to the State with the permission of the State. Under sub-rule (5) of Rule 16 such an excavator, shall have prior right to use the water for irrigation purpose. The Rule, however, does not give any right of fishery over Sarkari tank or reservoir to the tenant or even to the excavator of a tank dug on Sarkari land. Under rule 91 (2) a tenant can also with the prior sanction of the State construct a tank or Bandha, ditch or reservoir on Sarkari land or on his own holding at his expenses for the purpose of drinking, bathing & irrigation. This rule, however, also does not concede nay right of fishery. Rule 93 casts a duty on the tenants whose lands are irrigated with the water of the tank or reservoir constructed on the expenses of the State or any private person on his own land or on Sarkari land to repair the breaches thereof every year under the supervision of Sarbarkar (Village Revenue Officer.) According to the Report on Land Tenure & the Revenue System of the Orissa & Chhatishgarh State by R. K. Ramadhyani volume-III at page-180 relating to the Narsinghpur State, the tenant of a village enjoy fruits of orchards, fish of tanks & band has & irrigate their lands free. The excavators of tank have a prior right to water. All the water reserviors & orchards are Sarkari. The excavators of tank have a prior right to water. All the water reserviors & orchards are Sarkari. No tenant has the right to claim compensation, except remission of rent for the lands taken from the State for the benefit of the Public. 10. As per the system of Revenue Administration in the Ex-State of Narsighpur as seen from the Rules & report above the tenants of a village use to utilise the water of the tank existing in the village & also use to appropriate fish collected or grown in the tank existing on their rayati land. They have no indefeasible right of ownership over the tank in question, even though the tenants were duty bound to bear expenses for the purposes of maintenance & repair of the tank. Learned Counsel for the Plaintiff-Appellants argues with vehemence that since part of the suit tank belonging to some tenants of village-Badabarana which was submerged in the water of the tank was exchanged by rayati land of village-Lembo & also some compensation was paid for the rest of the submerged land the Plaintiffs can at least be said to have part ownership over the suit tank. In this respect reliance has been placed on Ext.4, i.e., certified copy of order sheets & report of Revenue Case No.43 of 1932-33 of the Court of Dewan of Narsighpur. The order sheet dated 02.06.1933 of the said case describes that in earlier Misc. Case No.482 of 1927-28 some- tenants of village-Badabarana had been given Ac.13.21 of land in exchange for their lands acquired for the suit tank & that a further area of Ac.4.79 was necessary to be given to such tenants of Badabarana whose land had been submerged in the suit tank. The tenants, whose land was submerged under the water of the tank were given the land in exchange that belonged to some tenants of Lembo. The order, however, does not reveal the manner of exchange & that no deed of exchange, etc. is forthcoming, nor there is any evidence to that effect. Since the tank in question was mostly used by tenants of Lembo, probably some rayati lands of Lembo were taken over by the State & given in exchange to some tenants of Badabarana whose land got submerged in the tank. is forthcoming, nor there is any evidence to that effect. Since the tank in question was mostly used by tenants of Lembo, probably some rayati lands of Lembo were taken over by the State & given in exchange to some tenants of Badabarana whose land got submerged in the tank. Therefore, it has been described in the order sheet in the Revenue Case that the land of tenants of Badabarana which submerged was acquired for the purpose of the Bandha (tank). The report dated 04.07.1993 of the Sarbarkar (Village Revenue Officer) submitted in the aforesaid Revenue Case also reveals that submerged land of some tenants of Badabarana was treated as Sarkari. Therefore, even if some rayati land of village-Lembo was given to the tenants of Badabarana whose land got submerged in the tank, that by itself would not confer right, title on the villagers of Lembo in respect of the part of the tank. 11. Admittedly, after merger the suit tank became the property of the Government & was transferred to the Grama Panchyat & had been leased out by way of auction for the purpose of pisciculture in the year 1977. It is also admitted that the Government sanctions funds for maintenance & repair of the tank in question. It is, therefore, clear that though the villagers & general Public used the water of the tank for different purposes, the ownership, control & legal possession over the tank is continuing with the State. The lower Appellate Court has, therefore, rightly come to the conclusion that the Plaintiffs have not acquired ownership over the tank in any manner. 12. The next question is whether the Plaintiffs can have a prescriptive right of fishery over the suit tank, as has been found by the lower Appellate Court. The discussion in paragraph-18 of the Judgment of the lower Appellate Court gives an impression that the Court got swayed away by the fact that some lands of village- Lembo were given to some tenants of village- Badabarna whose land got submerged in the water of the tank & therefore, it held that the Plaintiffs got the right to fishery by way of prescription, although it came to the conclusion that the Plaintiffs have acquired no title over the suit tank by way of adverse possession. The finding of prescriptive right of fishery for which no reason has been given is also inconsistent with the finding that the Plaintiffs have not acquired title by way of adverse possession. The evidence of the Plaintiffs witnesses with regard to rearing of fish has not been accepted by the lower Appellate Court. Ext. 1, which is said to be the statement of accounts with regard to rearing & enjoying of fish of the tank by the villagers of Lembo has been rejected by the lower Appellate Court while discussing the evidence of PW.3. In fact, there is no proof with regard to the proper custody of Ext.1, which is said to be the statement of accounts with regard to the tank in question. In fact, PW.3 has stated in his evidence that Ext.1 was being maintained by Harihar Rajgur, who was the Sarbarkar of Village-Lembo. He has even identified the handwriting of the said Sarbarkar. The entries in Ext. 1, however, do not exclusively relate to accounts with regard to expenditure & income by way of sale of fish of the suit tank. Ext.1 also contains entries relating to expenditure on repair & maintenance of the school, expenditure incurred in litigations & expenditure in the nature of contribution for religious purposes. Therefore, Ext. 1 cannot said to be a statement of accounts regarding the suit tank only. Since it was maintained by the Sarbarkar, who was the village Revenue Officer, & not by the villagers as a community, it cannot be accepted as a document in proof of rearing & enjoying fish by the villagers of Lembo & the Court below has rightly rejected the same. 13. It has been held by the Apex Court in the case of Raja Braja Sundar Deb & anr v. Moni Behera & others; AIR 1951 SC 247 that a right fish to from the fishery based on mere inhabitancy is capable of an increase almost indefinite & it would necessarily lead to the destruction of the fishery itself & the same cannot be acquired by prescription. It was also held by the Apex Court as follows: "We find it difficult to uphold the view of the High Court that the Defendants were in possession of the disputed fishery under a lost grant. It was also held by the Apex Court as follows: "We find it difficult to uphold the view of the High Court that the Defendants were in possession of the disputed fishery under a lost grant. This doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water. As pointed out by Lord Radeliffe in Lakshmidhar Mishra v. Rangalal, A.I.R (37) 1950 P.C.56:(29 Pat.1), the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user & that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, & that a right exercisable by the inhabitants of a village from time to time in neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant there being no admissible grantees xxx xx." 14. On the aforesaid an analysis, the finding of the lower Appellate Court that the villagers of Lembo have prescriptive right of fishery over the suit tank & further direction restraining the Defendants from interfering with such right of fishery cannot be sustained. I, therefore set aside, such finding & order of lower Appellate Court. The Second Appeal No.204 of 1987 is accordingly dismissed & Second Appeal No.225 of 1988 is allowed & the Plaintiffs suit is dismissed with costs through out. Appeal dismissed.