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2012 DIGILAW 82 (ORI)

Kalandi Jena v. Basanti Sethi

2012-02-13

B.K.NAYAK

body2012
JUDGMENT B.K. NAYAK, J. – In this writ petition, the petitioner prays for quashing of the order dated 27.10.1997 passed by the Joint Commissioner, Settlement and Consolidation, Bhubaneswar in Revision Case No.70 of 1994 under Annexure-7 whereby he set aside the orders of the Consolidation Officer, Bhadrak dated 04.06.1993 passed in Objection Case No.505 of 1992 under Annexure-4 and the order of the Deputy Director, Consolidation, Bhadrak passed in Appeal Case No.29 of 1993 under Annexure-5. 2. That dispute relates to M.S. Plot No.1049, Ac.0.84 under M.S. Khata No.385, corresponding to L.R. Plot No.1049 under Khata No.220, which forms part of C.S. (1928 settlement) Plot No.963, Ac.5.11 under C.S. Khata No.179 situated in Mouza Harishankarpur, Tahsil, Bhadrak, District : Balasore (presently in the district of Bhadrak). 3. C.S. Plot No.963 was originally recorded as Puratan Patita in the name of ex-landlord, Mrutunjaya Narayan Praharaj as per C.S. R.O.R. under Annexure-1. During Major Settlement, the disputed M.S. Plot No.1049 has been recorded as Patita in the name of the State of Orissa Abadajogya Anabadi Khata as per R.O.R. under Annexure-2. During consolidation operation parcha was issued in respect of the said disputed plot in favour of opposite party Nos.1 and 2. The petitioner filed Objection Case No.505 of 1992 contending that the disputed plot be recorded as Abadjogya Anabadi and opposite party Nos.1 and 2 have no right, title and interest over the same. The opposite party Nos.1 and 2 contested the objection case contending that the ex-landlord Mrutyunjaya Praharaj had leased out Ac.2.36 out of Ac.5.11 of the disputed C.S. Plot No.963 in favour of his son Kameswar Narayan Praharaj, in whose favour Tenants Ledger (T.L.) was opened. The said lessee, Kameswar Narayan Praharaj sold the disputed land to one Gangadhar Senapati by way of registered sale deeds dated 02.09.1961 and 29.03.1966. The said Gangadhar in his turn sold Ac.0.40 dec. out of the same to Fakir Charan Tripathy by way of registered sale deed dated 17.02.1978. Subsequently by virtue of the registered sale deeds dated 24.06.1983 and 02.09.1983 Aparna Tripathy, widow of Fakir Ch. Tripathy sold the same Ac.0.40 dec. in favour of opposite party No.1. By virtue of registered sale deed dated 09.09.1983 Gangadhar Senapati had sold Ac.0.22 dec. of the disputed property to opposite party No.1. By virtue of another sale deed dated 09.09.1983 Gangadhar Senapati also sold the rest Ac.0.22 dec. Tripathy sold the same Ac.0.40 dec. in favour of opposite party No.1. By virtue of registered sale deed dated 09.09.1983 Gangadhar Senapati had sold Ac.0.22 dec. of the disputed property to opposite party No.1. By virtue of another sale deed dated 09.09.1983 Gangadhar Senapati also sold the rest Ac.0.22 dec. of the disputed land to opposite party No.2 and they have been paying rent to the State and as such they have right, title and interest over the said land. The order of the Consolidation Officer in Objection Case reveals that though the disputed M.S. Plot was recorded in favour of the State in Abadajogya Anabadi Khata, during initial stage of consolidation operation the said disputed plot was recorded as L.R. Plot No.1049, Ac.0.84 in favour of the opposite parties on the basis of the intimation slip issued in Mutation Case Nos.1750 and 1751. The Consolidation Officer also found as a fact that the Tenants Ledger in respect of Ac.2.63 out of the disputed C.S. Plot was opened in favour of Kamespar Narayan Praharaj. The Consolidation Officer directed to record the disputed M.S. Plot No.1049 in the name of the State in Abadjogya Anabadi Khata under kisam-Patita on the finding that the lease of the disputed land along with other land measuring Ac.2.36, if any, by Mrutunjaya Narayan Praharaj in favour of his son Kameswar, who was then a minor, was void. Taking into consideration the age of Kameswar Narayan Praharaj as 9 years as described in the sale deed dated 02.04.1961, the Consolidation Officer came to the conclusion that Kameswar Narayan Praharaj might have been born in the year 1952 and therefore, the purported lease in his favour after 1952 by the ex-intermediary is void under the provisions of Section 5(i) of Orissa Estate Abolition Act and therefore, there was no valid basis for preparation of Tenant Ledger in favour of Kameswar Narayan Praharaj. The Consolidation Officer also found, referring to the report of the R.I. that the Tenants Ledger contains no plot number for which it was opened. Therefore, the disputed plot cannot be related to the land covered under the Tenants Ledger and hence any transfer of the disputed land by Kameswar Narayan Praharaj and the subsequent transfer of the same made in favour of the opposite parties are void and do not confer any right, title, interest in their favour. 4. Therefore, the disputed plot cannot be related to the land covered under the Tenants Ledger and hence any transfer of the disputed land by Kameswar Narayan Praharaj and the subsequent transfer of the same made in favour of the opposite parties are void and do not confer any right, title, interest in their favour. 4. The opposite parties challenged the decision of the Consolidation Officer by filing Appeal Case No.29 of 1993 before the Deputy Director, Consolidation, Bhadrak. The Deputy Director came to hold that the genuineness of Hatapatta said to have been issued by ex-landlord in favour of his infant son-Kameswar Narayan Praharaj is doubtful as the same has not been produced. Accordingly the Deputy Director, Consolidation confirmed the order of the Consolidation Officer and dismissed the appeal by his order under Annexure-5. 5. Being aggrieved by the appellate order of the Deputy Director, the opposite parties filed Revision Case No.70 of 1994 before the Joint Commissioner, Settlement and Consolidation, Bhubaneswar, who allowed the revision by his order under Annexure-7 and set aside the orders of the learned Deputy Director of Consolidation and the Consolidation Officer with the following observation. "The Courts below have failed to appreciate one important document, i.e., the T.L. It is the settled law that by accepting rent tenancy can be created. Even if the story of Hatpatta fails then Kameswar can be treated as tenant, as State has accepted him as tenant by accepting rent from him. Secondly the documents filed by the petitioners such as M.S. R.O.Rs. and Plot index go to show that the entire suit C.S. Plot has been recorded in the names of different persons in stitiban status. Thirdly the learned C.O. has given much importance to M.S. Entry. But I am unable to accept it as it is the settled law that settlement entry neither creates nor extinguishes title. Further the share has been rectified within 12 years of its publication." 6. Thirdly the learned C.O. has given much importance to M.S. Entry. But I am unable to accept it as it is the settled law that settlement entry neither creates nor extinguishes title. Further the share has been rectified within 12 years of its publication." 6. In assailing the impugned revisional order, the learned counsel for the petitioner contended that the purported lease of the disputed land along with other lands by Ex-landlord, Mrutunjaya Praharaj in favour of his minor son, Kameswar Narayan Praharaj was void as the lease was in contravention of Section-2 of Orissa Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Act No.1 of 1948) inasmuch as the disputed land was communal land being recorded as patita and the lease was purportedly executed after 01.01.1946. He further submits that as has been found by the Consolidation Officer and the Deputy Director of Consolidation, no lease deed in fact was produced before those authorities and therefore, the preparation of Tenancy Ledger in the name of Kameswar Narayan Praharaj was without any basis and therefore, opposite party Nos.1 and 2 derived no title on the basis of their purchase. It is his further submission that a proceeding under Section 5(i) of Orissa Estate Abolition Act has been initiated before the O.E.A. Collector bearing Misc. Case No.01 of 1992 challenging the validity of the lease in favour of Kameswar Narayan Praharaj. The Consolidation Revisional authority should have stayed the revision case awaiting decision of the proceeding initiated under Section 5(i) of the OEA Act. 7. With reference to the counter affidavit filed by opposite party Nos.1 and 2, the learned counsel appearing for them contends that the provisions of Act No.1 of 1948 relating to prohibition of transfer contained therein are not applicable to the present case inasmuch as the disputed land is not of the category or class to which the said Act applies. He also submits that the lease of the disputed land along with other lands by the Ex-landlord in favour of his son, Kameswar Narayan Praharaj does not become invalid merely because a proceeding under Section 5(i) of the OEA Act has been initiated, unless after enquiry the OEA authority comes to a conclusion that the lease was made to defeat any provisions of the OEA Act or for obtaining higher compensation thereunder. It is also his submission that even if the Joint Commissioner of Consolidation has not gone into the question of validity of lease, he has rightly held that by virtue of acceptance of rent by the State from Kameswar Narayan Praharaj, tenancy has been crated even if the story of lease by a Hatpata fails, which is a settled principle and therefore the revisional order needs no interference. It is also his submission that besides the disputed land, other lands leased out to Kameswar Narayan Praharaj have been sold at different points of time to different persons and they have been recorded in the names of the purchasers and neither the State nor anybody else challenged the validity of the same. 8. Section 3(1) of the Orissa Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Act 1 of 1948) prohibits alienation of any communal, forest or private land by a landlord without previous sanction of the Collector. Section 4(1) of the said Act provides that any transfer in violation of Section 3 affected after 01.04.1946 shall be void and inoperative. Section 2(a)(ii) of the Act defines 'communal land' in relation to the case governed under the Orissa Tenancy Act as land recorded as gochar, Rakhit or Sarbasadharana in the Record of Right or waste lands which are either expressly or impliedly set apart for the common use of the villagers whether recorded as such in the R.O.R. or not. The C.S. Record of Right of the disputed land i.e. C.S. Plot No.963 has been filed as Annexure-1 which reveals that the said plot was recorded in the Anabadi Khata and the nature of the plot has been described as "Purunapadia". There has been nothing in Annexure-1 to show that it was set apart for the use by general public or community. Ext.2 is the M.S. R.O.R. of the disputed land which was recorded in the Abadjogya Anabadi Khata of the Government with status "Patita" meaning thereby "fallow." Therefore, as per Annexure-2 the land was recorded as fallow which is reclaimable. In this R.O.R. also it has neither been recorded as gochar, Rakhit or Sarbasadharana. There is also no material on record to show that at any point of time the disputed land was set apart for the common use of the villagers. Therefore, the provisions of Act No.1 of 1948 has no application to the disputed land. In this R.O.R. also it has neither been recorded as gochar, Rakhit or Sarbasadharana. There is also no material on record to show that at any point of time the disputed land was set apart for the common use of the villagers. Therefore, the provisions of Act No.1 of 1948 has no application to the disputed land. In such view of the matter it cannot be said that the lease granted in favour of Kameswar Narayan Praharaj by the Ex-landlord was hit by the provisions of the Act 1 of 1948. 9. Admittedly the Hatpata said to have been granted by the Ex-landlord in favour of the lessee, Kameswar Narayan Praharaj was not produced before any of the authorities during the consolidation proceeding. However, the Tenancy Ledger was taken note of by the Consolidation Officer and the Deputy Director, who held that the Tenants Ledger has no basis. Evidently the Joint Commissioner of Consolidation in his revisional order has not gone into the question of validity of the lease, and on the other hand, appears to have proceeded accepting the views of the C.O. and the Deputy Director, Consolidation that the grant of lease by way of Hatpata in favour of Kameswar Narayan Praharaj was doubtful. However, he has stated that Kameswar can be treated as tenant since the State had been accepting rent from him, It is the contention of the learned counsel for the opposite parties that after the lease Kameswar had been paying rent to the State Government in respect of the suit land and subsequently his purchasers including the present opposite party Nos.1 and 2 have been paying rent regularly to the State Government. This factual aspect is not disputed by the learned counsel for the petitioner. A Division Bench of this Court in the decision reported in 40 (1974) CLT 888 (Jagannath Nanda v. Bishnu Dalei and others) held as under : "Clause (9) of the Section 3 of the Orissa Tenancy Act says that the expression 'land-lord' includes Government. This factual aspect is not disputed by the learned counsel for the petitioner. A Division Bench of this Court in the decision reported in 40 (1974) CLT 888 (Jagannath Nanda v. Bishnu Dalei and others) held as under : "Clause (9) of the Section 3 of the Orissa Tenancy Act says that the expression 'land-lord' includes Government. Consequently for the purpose of the tenancy laws, Government is in the same position as an ordinary private land-lord, It is well settled that under the tenancy laws a formal document is not necessary to create an agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent whereafter he would acquire the status of a tenant See Basiruddin & another v. State of Orissa and others; Bhikari Tripathy v. Kashinath Misra and others; State of Orissa and others v. Bhakta Charan Naik and others and The Collector of Puri v. Budhinath Samantray and another". In view of the admitted position that since the time of preparation of Tenancy Ledger in his favour, Kameswar Narayan Praharaj had been paying rent and thereafter the vendors of opposite party Nos.1 and 2 and from the date of their purchase the said opposite parties have been paying rent to the State, tenancy shall be treated to have been created in favour of Kameswar Narayan Praharaj even in absence of proof of the original lease. Learned counsel for the petitioner relying upon the decision reported in AIR 1986 Orissa 46 submits that a lease of immovable property under Section 105 of the Transfer of Property Act is a transfer to enjoy the property and it must satisfy the requirements which are necessary under the Contract Act for a valid contract. Since the Tenancy of Kameswar Narayan Praharaj and of opposite parties No.1 and 2 is considered by virtue of acceptance of rent by the State from them and the validity of the original lease is not being gone into, the decision cited by the learned counsel for the petitioner has no application. It is contended by the learned counsel for the petitioner that the plea of creation of tenancy by acceptance of rent by the State was not raised by the opposite parties before the Deputy Director, Consolidation and therefore the revisional authority should not have accepted the same. It is contended by the learned counsel for the petitioner that the plea of creation of tenancy by acceptance of rent by the State was not raised by the opposite parties before the Deputy Director, Consolidation and therefore the revisional authority should not have accepted the same. I have no hesitation to reject the contention as because law is well settled that if on the basis of some admitted or uncontroverted facts, certain legal consequence is to ensue on the basis .of settled legal principle, that would amount to a question of law which can be raised during the revisional stage, even though it was not urged at the original or appellate stage. So far as the proceeding under Section 5(i) of the O.E.A. Act is concerned since admittedly it was initiated during the year 1992, i.e., long after the estate vested and the proceeding is still pending, this Court expresses no opinion on the merits of the said proceeding. The view taken by the Joint Commissioner of Settlement and Consolidation in the revisional order under Annexure-7 is thus confirmed and the writ petition is dismissed, No costs. Petition dismissed.