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2012 DIGILAW 84 (ORI)

Tahasildar, Aul v. Guru Charan Palei

2012-02-15

ARUNA SURESH

body2012
JUDGMENT ARUNA SURESH, J. Appellant has assailed the Judgment of the First Appellate Court dated 11.12.1986 & decree dated 16.12.1986 passed in T.A. No.14 of 1980 thereby setting aside the Judgment dated 24.7.1980 & decree dated 31.7.1980 of the Trial Court passed in T.S. No.273 of 1978. 2. Precisely, the facts of the case are that Plot No.432 appertaining to Khata No.124 in village-Kusumi stands recorded as "Rakhit Gochar" in 1930 settlement. Plot No.420 is adjacent to North of Plot No.432. Plot No. 420 is the homestead of the Plaintiffs (Respondents herein), Defendants (Appellants herein) started Encroachment Case 189/ 76-77 against the Plaintiffs alleging that Northern A.0.07 decimal of land under Plot No. 432 had been encroached by the Plaintiffs. An eviction order was passed by the Tahasildar in the said case on 25.6.1978. Besides, penalty for encroachment was also imposed in the said order the encroached land is scheduled in the plaint as 'Kha'. On this land, Plaintiffs have raised their cattle-shed. 3. Plaintiffs' case is that they have never encroached on any portion of Plot No. 432 & cow-sheds are in existence for more than 80 years & that 'Kha' schedule land is not under Plot No.432. Alternatively, Plaintiffs have alleged that Plaintiffs being the settled raiyats of the suit village having been in possession of the encroached land openly, peacefully & without any interruption to the full knowledge of the ex-landlord & after vesting of the land with the Defendants to the knowledge of the State officials for more than 80 years, they have perfected their title over the same. Faced with eviction Order Dated 25.6.1978, Plaintiffs filed the present suit in the Court of Munsif (now Civil Judge (Jr. Divn.), Kendrapara. 4. The Trial Court dismissed the suit of the Plaintiffs with the observation that Plaintiffs have encroached six decimals of land adjoining the south of the cattle shed in Plot No. 432 some time in 1976 only & as such, they cannot have any claim over the same. He also held that though a portion of the cattle-shed is standing on one decimals of Plot No. 432 for the last 40 years, the Plaintiffs have not acquired title over the same by adverse possession. 5. Against the Judgment & decree of the Trial Court, Plaintiffs filed an appeal in the Court of Subordinate Judge, Kendrapara. He also held that though a portion of the cattle-shed is standing on one decimals of Plot No. 432 for the last 40 years, the Plaintiffs have not acquired title over the same by adverse possession. 5. Against the Judgment & decree of the Trial Court, Plaintiffs filed an appeal in the Court of Subordinate Judge, Kendrapara. The First Appellate Court allowed the appeal declaring Plaintiffs as tenants under the Government since the date of vesting of land with it & as such they cannot be evicted by the Defendants from the suit land & restrained tile Defendants accordingly. 6. Aggrieved by the Judgment & decree of the First Appellate Court, the State (Defendants) has filed this appeal. 7. Vide Order Dated 17.8.1987, the appeal was admitted & grounds No.1 (a), 1 (b) & 1 (c) as pleaded in the appeal were treated as substantial question of law. They are: 1 (a) Whether the decision of the Learned Munsif dismissing the, Plaintiff's suit is liable to be reversed by the Appellate Court without discussing the evidence on record whatsoever on a bare assumption? 1 (b) Whether the finding of the Learned Appellate Court that the Plaintiffs have acquired occupancy right over an admitted Rakhit Gochar land, is sustainable in law? 1 (c) Whether in view of the admitted case of the Plaintiff that he has acquired adverse possession against the State Government, the land having been vested in 1952, the third case made out by the Appellate Court that he has acquired adverse title against the intermediary is sustainable in law? 8. Mr. D. Pradhan, Learned Counsel for the State has submitted that the Appellate Court went wrong in holding that the Plaintiffs were in possession of the suit land for more than 12 years & as such had acquired adverse title against the intermediary & they became tenants under the intermediary & that the land vested in the Government in the year 1952 & thereafter, interest of the Plaintiffs was protected under Section 8(i) of the Orissa Abolition Act & they became tenant under the Government. He further submitted that the Learned Appellate Court committed an error in law in declaring the Plaintiff as tenant under the Government since the date of vesting & they cannot be evicted from the suit land & restraining the Government from evicting them from the suit property, as Plaintiffs were not raiyats & had not acquired any right to hold any land for the purpose of cultivation. It is argued that Plaintiffs have failed to prove that for a period of 12 years before & after the commencement of the Orissa Tenancy Act continuously held the impugned land as raiyat land & no presumption could have been inferred in their favour that after the expiration of the period, Plaintiffs became settled raiyat of the village. 9. Second limb of argument is that the suit land formed part of Plot No.420 & Plaintiffs claim that they have been enjoying the said land since the time of their forefathers & that they have perfected their title by adverse possession because of continuous possession of land over a period of 30 years against the Government & is only an alternative plea made by them. He has urged that while holding that Plaintiffs were in possession of the suit land for a period of more than 12 years & have acquired title against the intermediary & as such they were tenant under the intermediary, the Trial Court did not properly appreciate the oral as well as documentary evidence of the parties as placed on record. It is submitted that the Plaintiffs are trespassers & eviction order has been rightly passed against them. 10. Submissions made by the Learned State Counsel for the Government have been refuted by Mr. S.K. Das appearing for the Plaintiffs. He has submitted that in para 8 & 9 of the Judgment, Trial Court has admitted that Plaintiffs are in possession of the land in suit for 40 years, The Plaintiffs were tenants under the intermediary & after enforcement of Orissa State Abolition Act, they became tenant of the State Government by virtue of Section 8 of the said Act & that they are entitled to hold the same rights to which they were entitled to immediately before the date of vesting. He further submitted that since Plaintiffs are in continuous possession of the land in suit for a period of more than 12 years before the commencement of Orissa Tenancy Act, they became settled raiyat of the village & therefore are in possession of the property in suit in their own right & cannot be evicted from the land in suit. 11. Plaintiffs in their plaint have based their claim on two alternative pleas. They have claimed that the ancestral house & cow-sheds are existing over the land in suit since from the time of their ancestors i.e. for about 80-90 years as owners because they are never encroached upon the suit land as it is a part of plot No.420, which is their property. 12. Alternative plea is that they are the settled raiyats of the village & have been in possession of the impugned land openly, peacefully as a matter of right, without any interruption or interference of anybody & to the full knowledge of the ex-landlord for more than 80 years & after vesting also they are possessing the said land openly to the fullest knowledge of the officials of the Defendants & have perfected title over the suit land. 13. Plaintiffs' case is that they never encroached upon any portion of Plot No.432. After filing of the suit, Plaintiffs got suit plot No.432 & their homestead plot No.420 measured by private Amin (P.W.4), Dharanidhar Jena on 13.12.1979. His report was proved in evidence as Ext.1 by the Plaintiffs. As per this evidence, a portion of cattle shed belonging to Plaintiff No.2, Gurucharan Palei stands on plot No.432 covering an area of 170 sq. links. A vacant land covering an area of A.1.06 decimals under Plot No.432 having some trees thereon is to the adjoining south of the cattle shed. Dharanidhar Jena's report (Ext.1) therefore corroborates the report Ext. E dated 13.1.1977 submitted by D. W.2, Government Amin, who have visited the spot in 1977 on receiving complaints from the villagers. Considering the admitted case of the Plaintiffs, the Trial Court held that at the time of hearing of the suit, Plaintiffs are in possession measuring Ac.0.07 decimals of impugned 'Kha Schedule' land forming part of Plot No.432. The First Appellate Court seems to have overlooked the admissions of the Plaintiffs made in their evidence which corroborate the claim of the defendant state. The First Appellate Court seems to have overlooked the admissions of the Plaintiffs made in their evidence which corroborate the claim of the defendant state. In fact, the First Appellate Court did not make any endeavor to assess & appreciate the oral as well as documentary evidence of the parties as adduced on record because none of his findings of fact are based on appreciation of evidence. The Trial Court therefore was right in holding that Plaintiffs were in unauthorized possession of impugned land which form part of Plot No. 432. 14. There is no dispute that the land in suit is "Rakhit Gochar" namely; it is a community land to be used by all the villagers. Based on Ext. D, the ROR of 1930 Settlement, the Trial Court rightly observed that there was no note of possession in favour of any individual in respect of the land in suit & therefore the Plaintiffs must not have been in possession in 1930 when the said document was prepared. Findings of fact of the Trial Court have not been interfered with or differed by the First Appellate Court in his Judgment. Findings of fact by the Trial Court are not under challenge in this appeal & therefore they need no reassessment. The Trial Court was right in holding that Plaintiffs did hot acquire any title by mere possession, Plaintiffs had to prove that their possession was hostile i.e. the Plaintiffs had knowledge all these years that they were occupying impugned land to the adverse interest of the landlord & also that the landlord knew that Plaintiffs were occupying impugned land claiming themselves to be the owner. As pointed out above, from the evidence of the Plaintiffs & the pleadings contained in the plaint, Plaintiffs were occupying the land in dispute under a bonafide mistake that it formed part of plot No. 420 which belongs to them. They never occupied the land in suit with hostile animus to the knowledge of the Ex-landlord before enforcement of Orissa Estate Abolition Act & thereafter to the Government. 15. Intermediary is defined in Section 2(h) of The Orissa Estates Abolition Act (hereinafter referred to as "OEA Act"). They never occupied the land in suit with hostile animus to the knowledge of the Ex-landlord before enforcement of Orissa Estate Abolition Act & thereafter to the Government. 15. Intermediary is defined in Section 2(h) of The Orissa Estates Abolition Act (hereinafter referred to as "OEA Act"). As per this definition, intermediary with reference to any estate means a proprietor, sub-proprietor, landlord, land holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure holder & includes an inamdar, a jagirdar, zamindar, illaquedar, Khorposhdar, Parganadar, Sarbarakar & Maufidar including the ruler of an Indian State merged with the State of Orissa & all other holders or owners of interest in land between the raiyat & the State, It is not the case of the Plaintiff that they were holding the land under any landlord or land holder or under any of the persons included in the definition. They claim their possession in their own right as owners. Therefore, it cannot be said that Petitioners were holding interest in the land under intermediary which later on vested in the Government. 16. By virtue of Section 8 of the OEA Act, a person who immediately before the date of vesting of an estate in the State Government, was in possession of any holding as a tenant under an Intermediary shall, on & from the date of vesting, be deemed to be a tenant of the State Government & such person shall hold the land in the same rights & subject to the same restrictions & liabilities as he was entitled or subject to, immediately before the date of vesting. Since Petitioners were not holding the land under any Intermediary as tenants Sec. 8 of the OEA Act does not come to their rescue. Admittedly, Plaintiffs never paid any rent to the State after the land had vested in the Government. Section 8 of the Act only gives continuity of tenure of tenants & does not create any new rights after the vesting of the estate in the State Government. 17. Raiyat is defined in Section 5 (2) of the Orissa Tenancy Act (hereinafter referred to as “O.T. Act”). Section 8 of the Act only gives continuity of tenure of tenants & does not create any new rights after the vesting of the estate in the State Government. 17. Raiyat is defined in Section 5 (2) of the Orissa Tenancy Act (hereinafter referred to as “O.T. Act”). It reads :- “Raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, & include also the successors-in-interest or persons who have acquired such a right”. 18. Section 23 of the Act defined “Settled raiyat”. As per this Section, every person who, for a period of more than twelve years before or after the commencement of the Act has continuously held as a raiyat land situate in any village whether under a lease or otherwise, shall be deemed to have become a settled raiyat of that village. It is an admitted case of the Plaintiffs that there is a cattle shed on a part of the suit land forming part of plot No.432 & on the rest of the land, there are different kinds of trees. No part of the suit land is used for cultivation purpose by the Plaintiffs or any member of their family or by hired servants etc. Therefore, in no manner the impugned land can be considered as a raiyat. 19. As discussed above, the land in suit is ‘Rakhit Gochar’ & therefore no occupancy rights could be acquired by the Plaintiff in respect of the impugned land. 20. In view of my observations as above, Radhamani Dibya & ors v. Braja Mohan Biswal & ors 54 (1984) CLT 1 (FB.) referred to by the Plaintiffs, has no application to the facts & circumstances of the case. 20. In view of my observations as above, Radhamani Dibya & ors v. Braja Mohan Biswal & ors 54 (1984) CLT 1 (FB.) referred to by the Plaintiffs, has no application to the facts & circumstances of the case. The Learned First Appellate Court without analyzing the admitted facts & evidence available on record in the light of provisions contained in Section 8(i) of the OEA Act & Section 23 of the OT Act committed an error in law when he observed that Plaintiffs being tenant; the Government was not entitled to evict them from the suit land & passed a decree of declaration in favour of the Plaintiff declaring that they were tenants under the Government since the date of vesting of the Estate with the State Government & that they cannot be evicted. Hence, the Judgment & decree of the First Appellate Court needs to be set aside. 21. Consequently, the appeal is allowed & the Judgment & decree of the First Appellate Court dismissing the suit of the Plaintiff is hereby set aside. Under the facts & circumstances of the case, there are no order as to costs. Appeal allowed.