Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 85 (ORI)

Chandramani Behera v. Sunali Rautray

2012-02-15

ARUNA SURESH

body2012
JUDGMENT ARUNA SURESH. J. Appellant has challenged the Judgment dated 19.8.1999 & decree dated 3.9.1999 of the 2nd Additional District Judge, Bhubaneswar passed in Title Appeal No. 3/20 of 1999/98 thereby confirming the Judgment dated 5.5.1998 & decree dated 25.6.1998 of the Civil Judge (Junior Division), Bhubaneswar passed in Title Suit No. 72 of 1990 vide which the suit for permanent injunction filed by the Appellant & also counter claim preferred by the Respondents No.2 & 3 seeking declaration of right, title & interest & permanent injunction was dismissed. 2. Appellant in this appeal is the Plaintiff is the Title suit. In brief, case of the Plaintiff is that he was in possession of the suit land as a tenant, in which Nisamani Mohanty was recorded as occupancy tenant, In order to deprive the Plaintiff of his right of possession, Nisamani Mohanty entered into a compromise with Defendants No. 2 & 3 (Respondent No. 2 & 3 herein), who were never in possession over the suit land & alienated a portion of the suit land in their favour through proceedings under Section 9 of the Orissa Land, Reforms Act (hereinafter called 'Act') though said proceedings were not maintainable. After such compromise, Defendants No. 2 & 3 relinquished their alleged possession over an extent of Ac. 0.290 decimals of the suit land in favour of the heirs of Nisamani Mohanty, namely; Purna Chandra Mohanty & Prakash Chandra Mohanty. The said two persons relinquished their possession to the extent of AC.0.070 decimals without any right to alienate the suit scheduled land after the said compromise purchasers of the suit land from Puma Chandra Mohanty & Prakash Chandra Mohanty were never in possession of the suit property nor they acquired any title over the same. Defendant No.1 never took possession of the suit land from the purchasers & did not acquire any title & ownership rights. Further case of the Plaintiff is that Defendants have no right, title or interest in the suit property as owners but they were trying to forcibly dispossess him from the impugned land. Hence, he filed the suit. 3. Defendants No. 2 &3 & the writ on statements have denied the claim of the Plaintiff & have made a counter claim that they were owners in possession in respect of Ac. Hence, he filed the suit. 3. Defendants No. 2 &3 & the writ on statements have denied the claim of the Plaintiff & have made a counter claim that they were owners in possession in respect of Ac. 0.070 decimals of land after having entered into a compromise with their landlord, the successors of Nisamani Mohanty in proceedings under Section 9 & 10 of the Act & after the said compromise, & the said land was accordingly recorded in their names, after the successor of Nisamani Mohanty & executed deed of relinquishment in their favour. The landlord was left with Ac. 0.290 decimals of land which they sold to several purchasers & at present Defendant No.1, is the owner in possession of that land, Defendant No.1 also disputed the claim of the Plaintiff's possession in respect of the suit land. Her claim is that she is in possession of the suit land since after its purchase by her & has acquired title & possession in respect of said Ac. 0.290 decimals of suit land as owner. She has disputed the claim of the Plaintiff that he is in possession of the impugned land. 4. On the pleading of the parties the Trial Court framed ten issued & four additional issues. On the basis of oral & documentary evidence adduced before it, the suit of the Plaintiff was dismissed. It was held that the compromise entered into between Nisamani Mohanty & Defendants No.2 & 3 in the proceedings under Section 9 of the Act was validly recorded by the Revenue Officer as the claim of 1/5th share of the land was from a person of general caste, that is Mohanty family & therefore the provisions of Section 22(A) & 23 of the Act were not attracted as they related to alienation of lands by the Scheduled Tribes. The Trial Court observed that Plaintiff had failed to prove that he was in possession of the land in suit as a tenant under Nisamani Mohanty as he had not produced any document to support his case, whereas Exhibits 1, 2 & 3 which were relied upon by the Plaintiff disclosed that Nisamani Mohanty was the recorded owner in respect of the land in suit & Plaintiff was in illegal possession over the same. While, concluding that Plaintiff had failed to prove his possession over the land in suit, it observed that Plaintiff had made contradictory statement as P.W.1 & had failed to produce any document to show that he was in physical possession of the land in suit. The first Appellate Court vide its impugned Judgment dated 19.8.1999 & decree dated 3.9.1999 has endorsed these findings. 5. Appeal was admitted on 9.1.2.1999 & questions indicated in grounds number 1, 2 & 4 of the appeal memo were formulated, as substantive questions of law for determination in this appeal. They inter alia read as follows:- I. Whether the orders of both the Courts below was proper & legal by not holding that the Revenue Authority in OLR Case No. 61/76 is void ab initio in as much as there was non-compliance of Sec.9 (1-A) of O.L.R Act before such purported compromise was accepted. 11. Whether; the Court below was right in not declaring that the said purported compromise between the legal heirs of deceased land lady, Nishamani Mohanty & the sons of one of the cants, Maheswar is against the spirit of the statute as such any transfer made thereafter, is illegal & not binding on the Plaintiff. IV. Whether the lower Appellate Court was right in holding that the suit for permanent injunction simpliciter is maintainable without declaration of title in as much as it is a settled principle of land that Plaintiff on the strength of his possession can resist interference from the persons who have no better title that himself. 6. Substantive questions of law 1 & 2 are inter-related. It is submitted by Mr. S. Pattnaik, learned Counsel for the Plaintiff that the order of Revenue Authority in OLR Case No. 61/76 is void ab initio as it is hit by Section 9 (1-A) of the Act & also that the land in suit could not have been transferred by the legal heirs of Nisamani Mohanty by way of a compromise with the legal heirs of one of the tenants, Maheswar in view of Section 22 & 22(A) of the Act. Since Plaintiff is in possession of the land in suit, his possession has to be protected & Defendant, should not be allowed to dispossess the Plaintiff in the garb of said compromise & consequent said of the land in suit to respective purchases, & finally to Defendant No.1. Since Plaintiff is in possession of the land in suit, his possession has to be protected & Defendant, should not be allowed to dispossess the Plaintiff in the garb of said compromise & consequent said of the land in suit to respective purchases, & finally to Defendant No.1. He has further submitted that Defendants number 2 & 3, sons of late Maheswar Behera, had no right, title & interest in the land in suit to transfer the same to any other persons including Defendant No.1 under the cover of illegal compromise. Heirs of Nisamani Mohanty, Purna Chandra Mohanty & Prakash Chandra Mohanty had no right title & interest to sell the land in suit or transfer the same in favour of third persons. He has referred to Section 23 of the Act to emphasis that the transfer being in controverter of the provision of Section 22(1) of the Act, is invalid & the Courts below went wrong in holding that the compromise arrived at between Nisamani, Mohanty & Defendants No.2 & 3 was not hit by Section 22 of the Act. 7. Mr. S. Bhuyan Learned Advocate appearing for Defendant No.1 has refuted the submissions made by Learned Counsel for the Plaintiff. He has argued that Nisamani Mohanty belonged to general category & therefore, Section 22 which imposed restriction on alienation of land by Scheduled Tribe or Scheduled Caste was not attracted to the facts of the case & therefore, the Courts below were right in concluding that the order of the Revenue Officer passed in OLR Case No. 61/76 based on compromise between the parties of the said case was legal & valid. He has further argued that the proceedings being under Section 9 of the Act, Revenue Officer was with his powers to record the compromise. He had submitted that Plaintiff in his plaint has reserved his right to challenge the order of the Revenue Officer passed in the said case, before the appropriate forum & he only sought protection of his possession of the suit land a Defendants were allegedly disturbing his possession. 8. The title of the suit reads suit for declaration of title, confirmation of possession & permanent injunction valued at Rs. 600 (rupees six hundred) only. 8. The title of the suit reads suit for declaration of title, confirmation of possession & permanent injunction valued at Rs. 600 (rupees six hundred) only. In para-6 of the consolidated plaint filed on 24.2.1998, while challenging the legality & validity of the compromise arrived at between Nisamani Mohanty & Defendants No.2 & 3 in proceedings under Section 9(1) of the Act, Plaintiff made it clear that as the sikimi right or right under Section 9 of the Act was to be decided by the Revenue Officer, Bhubaneswar, he would seek such relief in proper forum but the present, he being in possession as of right, the Defendants are to be restrained for not disturbing his possession in the land in suit. 9. Plaintiff has prayed for following reliefs :- a. That the Defendants permanently be restrained from visiting & disturbing possession of the Plaintiff in the suit land. b. That the cost of the suit be decreed against the Defendants. 10. Though the title of the suit gives an impression that Plaintiff has also sought for a declaration of title & confirmation of possession besides relief for permanent injunction in respect of land in suit, however after careful reading of the pleadings & the relief claimed it is clear that Plaintiff has only sought a relief for permanent injunction for restraining the Defendants from disturbing is possession over the land in suit, reserving his right to challenge the order of the Revenue Officer dated 28.2.1983, passed on an application under Section 9(1) of the Act, in the appropriate forum. In a suit for permanent injunction, therefore, when no relief of declaration has been asked for declaring the Order Dated 28.2.1983 as void, the Courts below & limited jurisdiction to consider the legality & merit of the order vis a vis the claim of both the parties is respect of the impugned land. 11. Section 22 of the Act puts restriction on alienation of land by Schedule Tribes in favour of any person except the one's so protected in the Section. Relevant part of the Section is reproduced as below:- "22. 11. Section 22 of the Act puts restriction on alienation of land by Schedule Tribes in favour of any person except the one's so protected in the Section. Relevant part of the Section is reproduced as below:- "22. Restriction on alienation of land by Scheduled Tribes-(1) [Any transfer] of holding or part thereof by a raiyat, belonging to a Scheduled tribe shall be void except where it is in favour of- (a) a person belonging to a Scheduled Tribe, or (b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer;" 12. Section 22, Sub-Section 5 of the Act provides that provisions contained in Section 22(1) shall apply mutatis mutandis to the transfer of a holding or part thereof a raiyat belonging to the Scheduled Caste. Therefore, the restriction imposed on alienation of land is on the Scheduled Tribe or Scheduled Caste as the case maybe & any such transfer if made by Scheduled Tribe or Scheduled Caste is void ab initio. This Section has no applicability to the facts & circumstances of the case. It is not in dispute that Nisamani Mohanty was recorded as occupancy tenant. She belonged to general category. A person belonging to general category is not hit by the provision of Section 22 & the Act she was within her rights to enter into a compromise with Defendants No.2 & 3, who happened to be sons of Maheswar Behera, her tenant. Transfer of the land in suit was made by a person of general category in favour of Scheduled Caste category persons, namely Defendants No.2 & 3. Purna Chandra Mohanty & Prakash Chandra Mohanty were the legal heirs of Nisamani Mohanty & therefore, they were within their rights to transfer their possession to the extent of Ac. 0.070 decimals of land as per the compromise in favor of a third person. The Courts below therefore, were right in holding that he order of the Revenue Officer dated 28.2.1983 passed in OLR Case No. 61/76 on the basis of compromise having been arrived at between the occupancy tenant Nisamani Mohanty & Defendant No.2 & 3, the legal heir of Maheswar Behera, her tenant, was valid. It was rightly held that once the title is transferred, the possession follows the title unless proved other wide. It was rightly held that once the title is transferred, the possession follows the title unless proved other wide. Under the facts & circumstances of the case, wile considering the provision of Section 9(1-A) of the Act both the Courts below have properly analyzed the oral as well as documentary evidence adduced on record by the parties to conclude that the said compromise was validly recorded by the Revenue Authority & that the order of the Revenue Officer was binding on the Plaintiff. 13. It is urged by Counsel for the Plaintiff that Plaintiff was not a party to the said proceedings & therefore, the compromise arrived at between the parties to the said petition cannot be endorsed against his rights. True that Plaintiff was not a party in the OLR Case No. 61/76 filed under Section 9 of the Act. The fact remains Nisamani Mohanty was the occupancy tenant. Application under Section 9 of the Act is required to be filed for obtaining permission from Revenue. Officer to obtain a certificate that the applicant has become a raiyat in respect of whole or a piece of land as described in the application. The person, ,who becomes a raiyat in respect of the site as specified in Sub-Section (1), is liable to pay fair & equitable rent to the Government landlord or the land holder as the case may be, immediately under whom the holds consequent on the extinguishment of rights s referred to in Sub-Section (2). It is the case of the Plaintiff himself that after coming into force of this Act, the land in question vested with the Government. There is sufficient evidence on record to indicate that Defendants have not been paying the rent to the Government since after the enforcement of the Act. The Plaintiff, on the other hand, did not place any document on the record to show that he was paying rent to the Government as occupier of the suit land after enforcement of the Act. In the absence of any evidence on record, the claim of the Plaintiff that he is in continuous physical possession of the land in suit cannot be sustained. Both the Courts below have held that Plaintiff has failed to prove that he is physical possession of the land in suit since before the death of his father, who was a tenant of Nisamani Mohanty. Both the Courts below have held that Plaintiff has failed to prove that he is physical possession of the land in suit since before the death of his father, who was a tenant of Nisamani Mohanty. He happened to be the brother of Maheswar Behera Plaintiff has admitted that he had separated from his father even before his death. If that was so, he could not have continued in physical possession of the land in suit after separation. Be that as it may, I need not deliberate on the fact findings of the Courts below that Plaintiff was not in possession of the land in suit for quite some time as this Court is not a third fact finding Court. It is needless to say that Defendants No. 2 & 3 had filed a suit for permanent injunction against the sons of the Plaintiff in respect of this very property. Disbelieving the claim for the Plaintiff's sons that they were in physical possession of the land in suit, the concerned Court had decreed the suit with the observation that Defendants No. 1 & 2 are the owners in possession of the suit property. Admittedly sons of the Plaintiff were residing with him at that relevant time. Plaintiff having failed to prove his possession in the land in suit, is in no manner affected by the compromise arrive at between Nisamani Mohanty & Defendants No. 2 & 3. 14. As discussed above, Plaintiff has reserved his right to challenge the order of the Revenue Officer passed in OLR Case No. 61/76 in the appropriate forum & has not sought any relief for declaration to the fact that the said order is illegal & not binding on him. He cannot, therefore, be allowed to agitate this issue in the second appeal after having failed, in both the Courts below. The order of the Revenue officer was considered by the, Courts below to a limited extent so far as it related to the relief for permanent injunction claimed by the Plaintiff in respect of impugned land, Hence, I find no reason to interfere in the findings of the Courts below that the compromise entered into between the legal heirs of deceased Nisamani Mohanty & Defendants No. 2 & 3 sons of Maheswar Behera, one of her tenants & the consequent order of the Revenue Officer accepting the compromise was valid. 15. 15. The other substantial question of law pertains to the finding of the Courts below that suit for permanent injunction simpliciter was not maintainable without declaration of title. It is no longer res integra that a person on the strength of his possession can resist interference from the person who has no better title then himself. However, in the case, Plaintiff has claimed his possession as a matter of right, disputing the right, title & interest of the Defendants in the property in suit & therefore, his claim is not based on the strength of his possession to resist interference of the Defendants, who according to him have no title in the property in suit. Plaintiff has not sought the relief for permanent injunction solely based on his possession of the suit land. Rather, his claim is based on his alleged title for which he has not claimed any relief of declaration. Courts below have given a concurrent finding of fact that Plaintiff has failed to prove his possession in the suit property & also, that the documents produced by him indicated that he was unauthorized occupant. There is no mention of Appellant's possession in respect of the, suit land in-exhibit-3 indicating that Appellant was not in possession of the suit land when this document was prepared. Having based his claim on title challenging the compromise arrived at between Nisamani. Mohanty &, Defendants No. 2 & 3 & recorded in petition under Section 9 of the Act, by the Revenue Officer in his Order, Dated 28.2.1993 & also the right, title & interest of the Defendants in the impugned land & having failed in his endeavor to prove that he was in possession. Plaintiff was required to seek declaration of his right, title & interest in respect of land in suit & that any transfer made by erstwhile purchasers of suit land in favor of Defendant No.1 was bad in law. A simpliciter suit for declaration generally is not maintainable without consequential relief. Where as a suit for injunction simpliciter is maintainable without the relief of declaration. A simpliciter suit for declaration generally is not maintainable without consequential relief. Where as a suit for injunction simpliciter is maintainable without the relief of declaration. However, under the peculiar facts & circumstances of this case, the Courts below observed that in a suit for injunction when any relief of declaration was not sought but while deciding the issue of physical possession of the Plaintiff it was necessary to declare his right title & interest in the impugned land & therefore the suit was not maintainable. I do not find any perverse findings or observations made by the Courts below in holding that the suit for permanent injunction in the absence of relief for declaration was not maintainable because in the garb of relief for permanent injunction. Plaintiff could not have been allowed to agitate his title on the suit land. Plaintiff has not only claimed a relief for permanent injunction to protect his possession against the Defendant but has also claimed his right over the land in suit. Under the circumstances, he cannot be permitted to protect his alleged possession which he has failed to prove against the Defendants who have a better title right & interest in the impugned land. Hence, I concurrent with the findings of the Courts below that simple suit for permanent injunction without the relief of declaration under the peculiar circumstances of this case, is not maintainable. 16. In view of my discussion as above. I do not find any legal error in the impugned Judgment of the first Appellate Court vide which he agreed with the findings of the Trial Court in dismissing the claim of the Plaintiff. Therefore, the appeal must fail on merits. It is accordingly dismissed. Appeal dismissed.