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2012 DIGILAW 77 (ORI)

Sridhar Senapati v. Gobinda Chandra Mohapatra

2012-02-10

S.K.MISHRA

body2012
JUDGMENT S.K.MISHRA, J. -The 2nd appeal has been admitted on the following questions of law: i. Whether the settlement made by the Estate Abolition Authorities in favour of Gandei puts an end to the limited Estate previously enjoyed by her? ii. Whether the Plaintiff who was not entitled to make an application u/s 8-A not being in possession of the property on the date of vesting can acquire any interest therein? iii. Whether the Plaintiff has any locus standi to challenge the alienation made by Gandei after the settlement in her favour by the Estate Abolition authorities? 2. One Kahnei was the ancestor. He had two sons, Raghu & Madha, Chintamani, the son of Madha, predeceased him leaving behind his widow, gandei. Madha also died in the year 1916-17. On the other hand, Raghu had one son, Fakira had two sons, namely, Baraju & Banamali is the Plaintiff, Gopinath, Son of Baraju, is Defendant No.11 Chintamani died without any issue. So after the death of Chintamani & Madha, Gandai was left alone. She could no adjust herself with Raghu, Fakira & his sons & therefore, she was given AC.3.16 decimals of land for her maintenance. Taking advantage of her possession, Gandai allegedly managed to record her name in respect thereof in the settlement in the year 1921. 3. Gandai attempted to transfer the same to different persons. So Banamali, the Plaintiff & his brother, Baraju filed a suit against her in the year 1933-34. The suit was compromised between the parties. The parties settled that the land measuring Ac.3.16 decimals, which was given to Gandei for her maintenance on the condition that she could not alienate the same except 39 decimals of land of village Dwarika, appertaining to Khata No.93/3 & 23 decimals 5 links of land of the same mouza, appertaining to khata No.469/155, in total 62 decimals 5 links. It was further stipulated that if she was to alienate any portion of such 62 decimals 5 links, she must first offer to the sell the same to the original Plaintiff & his brother Baraju. It is pleaded by the Plaintiff that in violation of the condition of the compromise decree Gandei sold 74 decimals of land through a registered sale deed to the father of Defendant No.1 on 27.02.1940 for a consideration of Rs. 168. It is pleaded by the Plaintiff that in violation of the condition of the compromise decree Gandei sold 74 decimals of land through a registered sale deed to the father of Defendant No.1 on 27.02.1940 for a consideration of Rs. 168. Like wise, she gifted through registered gift deed 25 decimals of land of mouza Jokagadia under khata No.100/6, plot No. 18 area 9 decimals & plot No.222 area 16 decimals on 20.04.1949 in favour of Defendant No.2. She also transferred AC.1.81 decimals of land to Defendant No.3 for a consideration of Rs.1,000. Out of which, AC.1.54 decimals of land was Brahmatta Niskar land which vested in the Government in the year 1963-64. The Defendant No.3 filed R.F. Case Nb.242 bf 1963-64 before the Tahasildar, Nigiri, but rent was fixed in the name of Gandei. Subsequently, on 09.10.1975, Gandei sold AC.1.54 decimals of land to Defendant No.3 for consideration of Rs. 1,000 through registered sale deed after the same was vested on her under the O.E.A Act. The Defendant No.2 transferred 16 decimals of land, out of the land gifted to him by Gandei to Defendant No.4 through Defendant Nos. 5 to 10. Some of the land sold to the father of Defendant No.1 was jointly recorded in the name of Defendant Nos. 1 & 12. 4. The Plaintiff further pleaded that Gandei expired on 26.01.1981 leaving behind the original Appellant as her heir. The right of the Plaintiff- Appellant over the suit land accrued in the year 1981. So he filed the suit for declaration of his title, for confirmation of possession over the suit land or in the alternative for delivery of possession & for perpetual injunction with respect to the suit land described in schedule 'Kha' of the plaint. 5. The Defendant No.1 filed his written statement, inter alia, pleading that there was no cause of action for filling the suit. The Defendant No.1 further pleaded that Gandei was not living in jointness with Raghu & Madha & compromise decree was managed to be obtained from Gandei as she was rustic old paradanashin lady. So that compromise is not binding on her. It is further pleaded that as Gandei sold Ac.0.74 decimals of land to the father of Defendant No.1 in the year 1940 to repay loan & make, some gift for salvation of her soul, the Plaintiff-Appellant cannot challenge the same. 6. So that compromise is not binding on her. It is further pleaded that as Gandei sold Ac.0.74 decimals of land to the father of Defendant No.1 in the year 1940 to repay loan & make, some gift for salvation of her soul, the Plaintiff-Appellant cannot challenge the same. 6. The Defendant No.3 has also filed is written statement denying all the averments made in the plaint. He further pleaded that the suit is barred by limitation & mis-joinder of cause of action, etc. The Defendant No.3 further pleaded that the land measuring AC.1.54 decimals of land sold to him by Gandei vested in Government & rent roll in respect thereof issued in her favour in 1966. Thereafter, Gandei again sold the self-same Ac. 1.54 decimals of land to Defendant No.3 through a registered sale deed in the year 1975 in' order to clear doubts of title & future trouble in respect thereof. Defendant No.3 has mutated his land & the same land has been recorded in his name. The mutation case for Ac. 0.27 decimals of land is pending for disposal before the Tahasildar, Nigiri. So the Defendant No.3 has been possessing Ac. 1.81 decimals since his purchase on 02.03.1959. As such Defendant No.3 pleads that the suit should be dismissed. 7. After trial, the Trial Court held that the suit was barred by law of limitation, it was barred by lack of clarity & It was bad for misjoinder of cause of action & multifariousness. The Trial Court further held that the Defendant Nos. 1 & 12 have perfected their title over the suit land by way of adverse possession. It was further held that the sale of land by Gandei in favour of the father of Defendant No.1 was for legal necessity & that Defendant No.3 was actually possessing the suit land covered under Ext.B/1 since• pretty long time & that the compromise decree was forged & that Gandei had saleable interest over the suit property covered under registered sale deeds of 1959 & 1975 in favour of Defendant No.3 & therefore, the Trial Court dismissed the suit. The Appellants preferred an appeal, which was registered as M.A. No.16/16 of 1986-84-1 & it was disposed of by Learned Addl. District Judge, Balasore on 15.11.1989. The Learned Addl. The Appellants preferred an appeal, which was registered as M.A. No.16/16 of 1986-84-1 & it was disposed of by Learned Addl. District Judge, Balasore on 15.11.1989. The Learned Addl. District Judge came to the finding that Gandei was the absolute owner in possession of Ac.1.54 decimals of land, which was the land settled in her favour under the O.E.A Act & that she had alienated the same to Defendant No.3 & he upheld the validity of such sale. However, the sale of land in favour of Defendant No.3 & Defendant No.1 were ancestral property held to be invalid in view of the fact that the father-in-law of the Gandei died prior to passing of the Hindu Women Right to property Act, 1937, & therefore, Gandei had no interest on the lands belonging to the family. Therefore, the Addl. District Judge allowed the appeal in part. 8. The present 2nd appeal has been filed by the Plaintiff Appellants challenging the findings of the Learned Addl. District Judge to the effect that the sale of Ac. 1.54 decimals of land, which was Brahmatta Niskar land & was settled in favour of Gandei under the O.E.A. Proceeding, is illegal. 9. In course of hearing, the Learned Counsel for the Appellants confined the argument to one point only that the Gandei had already transferred Ac. 1.54 decimals of land prior to the same in her favour. So the settlement was wrong. It is contended by Learned Counsel for the Appellants that as Gandei was not in possession of land in. question on the date of vesting, the orders passed by the settlement authority for preparing the rent roll in her name is illegal & therefore the appeal should be allowed & the findings upholding the sale after such settlement should be set aside. The Learned Counsel for the Respondents on the other hand, contended that notwithstanding the fact that Gandei had alienated the said property in favour of Defendant No.3 the settlement made by the O.E. authority cannot be challenged in this appeal. Secondly, it is argued that since Gandei was alternatively settled with the land & she transferred the same in favour of the contesting Respondents, the Respondents have acquired valid title under the sale deed, & therefore, he pleads that the appeal should be dismissed. 10. Secondly, it is argued that since Gandei was alternatively settled with the land & she transferred the same in favour of the contesting Respondents, the Respondents have acquired valid title under the sale deed, & therefore, he pleads that the appeal should be dismissed. 10. This Court in NARASINGH PURLIP & OTHERS V. KRUSHNA PURLIA: ILR 1978 Volume II, CUTTACK, page 98, has decided that the raiyati right conferred upon, a proprietor in respect of the land in the estate which has vested under the Orissa Estates Abolition Act is a fresh right created under the statute & conferred upon him. The occupancy right which is conferred on the intermediary by virtue of settlement in his favour under the statute is not subject to any limitation. The deemed settlement is an independent transaction which follows vesting. By virtue of this transaction under the statute the proprietor is allowed to retain possession of his khas dakhali lands & to hold them under the State Government as a raiyat having occupancy right. The occupancy right which is conferred on the proprietor is a new right & is not subject to the same limitations which the proprietor had in respect of his proprietary right in the estate. 11. Applying the said principal to the case in hand, it is seen that once the authorities under the Orissa Estates Abolition Act, 1951 (hereinafter after referred to as the "Act" for brevity) has found out that the Gandei is in Possession of the land in question & the same has been settled in her favour. Sub-Section (3) of Section 8 of the Act provides that any person who immediately before the date of vesting held land under an Intermediary on favorable terms for personal service rendered by him to such Intermediary shall, form the date of vesting be discharged from the conditions of such service & the land may be settled with him in such manner & under such terms & conditions as may be, prescribed. 12. Thus Brahmatta Niskar land which was held by Gandei Vested with the estate & the State as a benevolent landlord recognized the tenancy right of land Gandei thereon & the rent rolls were prepared in her name. Such an Act has created a new right, which is independent of the rights, Gandei had under any other law governing her. 12. Thus Brahmatta Niskar land which was held by Gandei Vested with the estate & the State as a benevolent landlord recognized the tenancy right of land Gandei thereon & the rent rolls were prepared in her name. Such an Act has created a new right, which is independent of the rights, Gandei had under any other law governing her. So the first question is answered in her favour to the effect that the limited estate, which was being enjoyed by her, came to an end on the settlement of the land in her favour by the Estate Abolition authorities. 13. The second & third questions related to the entitlement of the Plaintiff & his Locus standi to challenge the alienation made by Gandei after the settlement in her favour by the Estate Abolition authorities. It is clear that a person who is in possession of a land can be settled with the same. Under Sub-Section (2) of Section 8-A of the Act, it is provided that any person who is discharged from the conditions of personal service under Sub-sec.(3) of Section 8 may file his claim in the prescribed manner before the Collector within six months from the date of vesting for settlement of the lands held under the terms & conditions of such service. Therefore, the Plaintiff has not established that he was in possession of the land in question & that he was discharging any functions of personal service to any intermediary is n9t entitled to make any application under Section 8-A of the Act &, therefore, he has no locus standi to challenge the alienation made by Gandei after the settlement in her favour by the Estate Abolition authorities. 14. Learned Counsel for the Appellant has argued that since Gandei has already sold the land in question, the factual finding arrived at by the Estate Abolition authorities is in correct to the extent that Gandei was not in possession of the land in question. But such a contention cannot be raised in the Second Appeal for the first time. Moreover, if any party was aggrieved by the order of settlement of the land in favour of Gandei by the Estate Abolition authorities, then they should have pursued the forum prescribed under the Act. Such a contention cannot be allowed to be raised in a Second Appeal in such a belated stage. Moreover, if any party was aggrieved by the order of settlement of the land in favour of Gandei by the Estate Abolition authorities, then they should have pursued the forum prescribed under the Act. Such a contention cannot be allowed to be raised in a Second Appeal in such a belated stage. In view of, the above matter, this Court finds no merit in the Second Appeal, the same is devoid of any merit & is, accordingly, dismissed. No costs.