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2013 DIGILAW 496 (ORI)

Parbati Mallick v. Laxman Mishra

2013-12-16

M.M.DAS

body2013
Judgment : M.M. DAS, J. This Second Appeal has been filed against a reversing judgment and has been admitted on the following substantial of law:- “Whether the lower appellate court committed serious error of law in holding that Section 67 of the O.L.R. Act will operate as a bar particularly where the suit of the present nature wherein the jurisdiction of the statutory authority is in challenge and in view of the settled position of law that the jurisdiction of the Civil Court under section 9 of the Code of Civil Procedure cannot be ousted wherein the question of jurisdiction of statutory authority is the subject- matter of the suit and in the suit of such nature, section 67 of the O.L.R. Act will not operate as a bar ? 2. The plaintiff in T.S. No. 29 of 1997 is the appellant. The suit property pertains to C.S. plot no. 919 under C.S. Khata No. 234, measuring Ac.0.12 decimals corresponding to M.S. plot No. 989 measuring Ac. 0. 08 decimals and plot no. 941 measuring Ac. 0.04 decimals under M.S. khata No. 591 of Village -Shyamraipur in the district of Bhadrak. The plaintiff-appellant in the suit prayed for declaration of her raiyati right, title and possession over the suit land and for confirmation of possession and in the alternative for recovery of possession if found dispossessed by the defendants, with an ancillary relief of permanent injunction against the defendants-respondents. 3. The case of the plaintiff-appellant was that she originally was an inhabitant of village Gelpur, samil – Gopabandhpur and is a member of Scheduled Caste. One Manik Basant Ray, W/O. Kailash Chandra Basant Ray of village Sarapada under Bhandari Pokhari Police Station was the owner of the suit land. The plaintiff – appellant constructed a dwelling house on the suit land in February, 1962. After having obtained permission from Manik Basant Ray, she constructed the house at her own expenses and is residing in the said house since 1962 till date. She was declared as a raiyat in respect of the suit land by the Tahasildar, Bhadrak vide order dated 6.3.1979 in a proceeding under section 9 of the O.L.R. Act registered as O.L.R. Case No. 27 o 1978. Therefore, she has acquired indefeasible raiyati right over the suit land from the said date. She was declared as a raiyat in respect of the suit land by the Tahasildar, Bhadrak vide order dated 6.3.1979 in a proceeding under section 9 of the O.L.R. Act registered as O.L.R. Case No. 27 o 1978. Therefore, she has acquired indefeasible raiyati right over the suit land from the said date. She has been paying rent in respect of the suit land though the suit land is a homestead property with a dwelling house of the plaintiff-appellant. In the M.S. Khatian its status has been wrongly noted as “Sarada”. By 6.3.1979 M.S. operation reached the stage of finality and the Khatian was prepared in the name of Manik Basanta Ray. But in due course, the Tenancy Ledger has been corrected and the defendants have got no semblance of right, title, interest and possession over the suit land. The defendant no. 1 having threatened the plaintiff – appellant on 15.1.1997 to evict her from the suit land on the ground that the defendants 2 to 4 have purchased the suit land from the heirs of Manik Basanta Ray, the cause of action arose for the plaintiff – appellant to file the suit. According to the plaintiff – appellant, Manik Basanta Ray ceased to have any title over the suit land from 6.3.1979 and her heirs had no right, title and interest and/or possession over the suit land for which they had no right to alienate the property in favour of the defendants and the transfer, if any, by the heirs of Manik Basanta Ray in favour of defendants is out and out illegal and void. An alternative plea was taken by the plaintiff – appellant that she has perfected her title by way of adverse possession. 4. The defendants filed a written statement denying the plaint allegations and, inter alia, pleading that the plaintiff – appellant has no residential house over the suit land even on the date of filing of the written statement which has been observed by the Tahasildar, Bhadrak while enquiring in the Bhadrak Tahasil Suo Motu Case No. 2 of 1995. Hence, the question of the plaintiff-appellant possessing the land since 1962 uninterruptedly for thirty years is incorrect. The plaintiff- appellant has not acquired any raiyati right in O.L.R. Case No. 27 of 1978 under section 9 (1) of the O.L.R. Act. Hence, the question of the plaintiff-appellant possessing the land since 1962 uninterruptedly for thirty years is incorrect. The plaintiff- appellant has not acquired any raiyati right in O.L.R. Case No. 27 of 1978 under section 9 (1) of the O.L.R. Act. Fraud was alleged by the defendants stating that the plaintiff-appellant in connivance with some employees of the Tahasil office created back dated documents in her favour which were set at naught by the Sub-Collector, Bhadrak, who directed the Tahasildar, Bhadrak to implement his order on the fraud and forgery practised by the plaintiff-appellant and the Tahasil employees were brought to his notice. It is also pleaded that at the instance of the son of Manik Basant Ray, allegation was made to all superior revenue authorities about the fraud and mal-practice done by the Tahasil employees with a view to favour the plaintiff-appellant and on such allegation, the Tahasildar, Bhadrak started the above mentioned Suo Motu Misc. Case No. 2 of 1995 and, accordingly, the Tenancy Ledger created on account of such fraud in favour of the plaintiff-appellant was duly corrected in favour of the original raiyat Manik Basant Ray prior to filing of the suit by the plaintiff-appellant and steps are being taken by the district revenue authorities to book the officers under proper section of criminal law. In the said suo motu O.L.R. Misc. Case, it was finally held that the procedure of O.L.R. Act had not been followed in O.L.R. Case No. 27 of 1978 and that there was no due publication of notice and some of the employees have fabricated various records with a view to give favour to the plaintiff-appellant and, as such, neither Manik Basant Ray nor her heirs had lost any right, title and interest over the suit property. They were the title holders till they transferred Ac. 0. 10 decimals under R.S.D. dated 22.8.1995 in favour of defendant nos. 2 to 4 for consideration. The vendor being the son of Manik Basant Ray, he approached this Court in O.J.C. No. 11901 of 1997 and this Court has maintained the orders of the Sub-Collector, Bhadrak directing the Sub-Collector, Bhadrak to implement the same. Hence, the defendants 2 to 4 have acquired valid title over the suit property and are in possession of the purchased land and have got their names mutated in the revenue records. Hence, the defendants 2 to 4 have acquired valid title over the suit property and are in possession of the purchased land and have got their names mutated in the revenue records. Consequently, the Tahasildar has issued fresh khatian to the defendants 2 to 4, who have paid the rent to the Tahasil for their respective lands. Thus, the plaintiff-appellant having lost the case before the revenue authorities has filed the fabricated suit against the defendants. 5. An additional written statement was filed after amendment of the plaint detailing the fraud alleged to have been played by the plaintiff-appellant in connivance with the employees of the Tahasil. On the above pleadings, the learned trial court framed as many as seven issues, out of which, issue nos. 4, 5 and 6 being the vital issues, were taken up together. 6. The learned trial court, while deciding the said issues, negatived the plea of the plaintiff-appellant that the application under section 9 of the O.L.R. Act was made beyond the time and held that the said application was within time as per the amended Rule 13 (1) of the O.L.R. Rules. For the aforesaid finding, the learned trial court relied upon the Full Bench decision of this Court in the case of Bhabagrahi Panda v. Trilochan Kar and others, 64 (1987) CLT 686. Thus holding, the learned trial court concluded that once it is held that a Tribunal which has jurisdiction to decide the matter and limitation is saved, the jurisdiction of the Civil Court is ousted as per the provisions of section 67 of the O.L.R. Act. He also relied upon the decision in the case of Gulzar Khan v. Commissioner of Consolidation and others, 1993 (II) OLR 194, wherein, another Full Bench of this Court held that the civil court’s jurisdiction would be available if the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure or if the order is obtained by practising fraud. Referring to other decisions of this Court, the learned trial court came to the conclusion that once it is held that the order passed in O.L.R. Case No. 27 of 1978 is a valid one and the Tahasildar had jurisdiction to dispose of the matter, then it shall be considered that the sons of Manika Basant Ray had no alienable right by the year 1995. On the other hand, if it is held that the finding in OLR Case No. 2 of 1995 is correct, the plaintiff –appellant has no legs to stand to advance her claim. Thereafter, analyzing the evidence with regard to the allegation of fraud, the learned trial court came to the conclusion that the Sub-Collector (S.D.O.) had no jurisdiction to direct the Tahasildar to start a Suo Motu Case No. 2 of 1995 and the Tahasildar in the said suo motu case had no jurisdiction to review the earlier order passed in the O.L.R. Case No.27 of 1978. The Sub-Collector (S.D.O.) did not have any appellate power over the order passed under section 9 (1) of the Act. Therefore, his direction to the Tahasildar to initiate suo motu case restoring the suit land to the original owner and to make correction in the R.O.R. as well as in the Tenants Ledger was without jurisdiction. He negatived the plea of fraud taken by the defendants and came to the conclusion that there is no allegation during the course of hearing by the witnesses of the defendants with regard to such fraud having practised by the plaintiff-appellant. With the aforesaid findings, the learned court below decreed the suit of the plaintiff – appellant. 7. The defendants being aggrieved preferred R.F.A. No. 8 of 2004 which was decided by the learned Additional District Judge, Bhadrak by his judgment dated 9.5.2005. The learned Addl. District Judge on a thread bare analysis of the evidence came to the conclusion that the learned trial court was not correct in holding that the order passed in OLR Case No. 27 of 1978 was not an out-come of fraud. He also found that the procedure to be followed in the OLR Case was not followed as per the prescription in the Rules. In detail, he enumerated in the judgment the fraud as noticed in OLR Case No.27 of 1978 which was rectified in OLR Case No. 2 of 1995 by the Tahasildar which was initiated suo motu pursuant to the direction of the Sub-Collector. Referring to the evidence of the defendants, he categorically found that fraud has been proved which was specifically pleaded in the written statement and the additional written statement. He also held that the subsequent suo motu Misc. Case registered as Misc. Case No. 2 of 1995 was a continuation of a previous Misc. Referring to the evidence of the defendants, he categorically found that fraud has been proved which was specifically pleaded in the written statement and the additional written statement. He also held that the subsequent suo motu Misc. Case registered as Misc. Case No. 2 of 1995 was a continuation of a previous Misc. Case and section 67 of the O.L.R. Act is a bar to the suit. Thus holding, he reversed the judgment and decree passed by the learned trial court. 8. It is no more res integra that fraud vitiates all solemn actions and finding of fraud is a finding of mixed question of facts and law. It is also well settled that civil court’s jurisdiction is not ousted if procedural irregularities in a case conducted by a tribunal or a statutory authority are well proved before it and the civil court has jurisdiction to decide the said question which is vested in it under section 9 of the C.P.C. It is also well settled that when fraud is revealed, a court has inherent power to recall its order as fraud and justice can never dwell together. A judgment of a court cannot be allowed to stand, if it has been obtained by playing fraud. The Supreme Court in the case of Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592 has laid down that the judiciary in India possesses inherent power to recall its judgment or order if it is obtained by fraud on Court and the above principles will also apply to statutory Tribunal. 9. In the touch stone of the above principles of law, considering the present case, it would be apparent that the learned lower appellate court has rightly reversed the judgment and decree of the learned trial court and the substantial question of law raised thus is answered accordingly. 10. In the result, the Second Appeal being devoid of any merit stands dismissed, but in the circumstances, without cost. Appeal dismissed.