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2014 DIGILAW 91 (ORI)

Sukanta Sahu v. State of Orissa

2014-02-03

M.M.DAS

body2014
JUDGMENT M.M. DAS, J. : This First Appeal was once allowed by this Court by judgment dated 22.12.1995 setting aside the judgment and decree of the learned trial Court and decreeing the suit of the appellants-plaintiffs by granting reliefs of declaration of tenancy right and permanent injunction. The respondents - State challenged the said judgment in Civil Appeal No.687 of 1997 before the Hon’ble apex Court. The Hon’ble apex Court by its order dated 8.11.2000 held that on perusal of the judgment of this Court it leaves much to be desired and the High Court being the final Court of appeal on facts, ought to have discussed the relevant evidence adduced by the parties and recorded its conclusion based on it. It should have also indicated error committed by the trial Court and given reason as to why the High Court had not been able to agree with the findings recorded by the trial Court and took a different view on the facts. Finding that these aspects are lacking in the judgment under appeal, the Hon’ble apex Court felt it appropriate to set aside the judgment under challenge and remit the case to this Court for fresh disposal in accordance with law. Thus, this First Appeal has again been taken up for hearing and is being disposed of by this judgment. 2.Late Purna Sahu, the predecessor-in-interest of appellant Nos.1 to 3 along with the other appellants filed T.S. No.40 of 1983 before the Court of the learned Subordinate Judge, Bhubaneswar praying for the following reliefs : (a)The right, title, interest and possession of the plaintiffs be declared in respect of the suit properties described in Schedule-‘A’ corresponding to Hal in Schedule-‘B’ to the effect that the plaintiffs have acquired the right of tenancy by adverse possession or occupancy status. (b)The cost of the suit be decreed in favour of the plaintiffs; and (c)Any other reliefs to which the plaintiffs be deemed entitled. 3.The suit property as described in the schedule of the plait constituted an area Ac. (b)The cost of the suit be decreed in favour of the plaintiffs; and (c)Any other reliefs to which the plaintiffs be deemed entitled. 3.The suit property as described in the schedule of the plait constituted an area Ac. 4.65 decimals appertaining to hal plot No.306 under Rakshit Khata No.491 under Police Station - Saheednagar, erst-while district of Puri, bounded by North - land of Radha Kar, plot No.302, South-Anabadi, East - land of Daitari Jena and Madan Bhoi and West - land of Bansidhar Patra, corresponding to part of sabik plot No.341, under Anabadi khata No.270 measuring Ac.225.00 under sabik Police Station - Sadar Cuttack, sabik district - Cuttack. It appears from the record that during pendency of the suit, the predecessor-in-interest of the appellant Nos.1 to 3 having expired, they were substituted as plaintiffs 1(a) to (c) before the trial Court. 4.The plaintiffs’ case was that the disputed property originally belonged to the Raja of Patia. The plaintiffs were in continuous and peaceful possession of the properties and were raising different crops and vegetables over the same for earning their livelihood. They were recognized and admitted as tenants in possession by the ex-intermediary. The estate of Patia was put to an auction sale in the year 1931 whereafter Raja of Kanika took over the same. Even after change of the intermediary-ship, the plaintiffs in lieu of their continuous and undisturbed possession over the said extent of land were also accepted as lawful tenants by the Raja of Kanika, in consequence of which, they paid rent to the administration of Kanika estate and were granted rent receipts. They were in possession over the disputed property from the time of their predecessors. The plaintiffs, therefore, claimed that they being settled raiyats of the Patia village having reclaimed the suit land after incurring heavy expenditure since 1944 till date, are continuing in peaceful possession of the said properties. In the hal settlement operation, the properties described in Schedule-A were wrongly and illegally recorded in the Rakshit holding of the village. After final publication of the Record of Rights, the properties in dispute were being contemplated to be leased out in favour of different persons by the defendants 1 and 2, i.e., authorities of the State, being Collector and Tahasildar. After final publication of the Record of Rights, the properties in dispute were being contemplated to be leased out in favour of different persons by the defendants 1 and 2, i.e., authorities of the State, being Collector and Tahasildar. They claimed that they have acquired valid title over the a suit properties as occupancy tenants from the time of their forefathers and notwithstanding the wrong entry in the Record of Rights and also notwithstanding the illegal and invalid lease, if any, in favour of any person, the plaintiffs are in open peaceful and undisturbed as well as continuous possession as of right to the knowledge of the world. Alternatively, the plaintiffs claimed declaration of their title by way of adverse possession. When the original private defendants, namely, Nurshingha Charan Rout and Ramesh Chandra Rout of village Patia gave out openly in the locality that they have got the suit property on lease from the Tahasildar - defendant No.2, the plaintiffs filed the suit for the reliefs claimed. It was also mentioned that a notice under Section 80 C.P.C. was issued to the defendants - respondents 1 and 2 as required under the C.P.C. before filing of the suit. 5.Defendants 1 and 2 after entering appearance filed a written statement denying the plaint allegations, inter alia, pleading that if the claim of the plaintiffs is believed, the land would not have been recorded in Kisam - Pathar Tangi in the year 1973 and if the allegations that the ex-intermediary has inducted the plaintiffs as tenants and granted receipts are true, the ex-intermediary would have given such tenancy record to the Government with other documents at the time of vesting of the estate. Acquisition of title by the plaintiffs was also denied. It was further pleaded by them that if the R.O.R. of 1973 was wrong, the plaintiffs would have taken steps in accordance with the provisions of Orissa Survey and Settlement Act and the Rules before the proper Court within the stipulated time. 6.It appears that upon filing of the written statement by the State authorities, i.e., defendants 1 and 2, the plaintiffs could know that there was no lease in favour of original defendants 3 and 4, so far as schedule properties are concerned, and prayed for deletion of defendants 3 and 4 from the record. The said petition was rejected by the learned trial Court. The said petition was rejected by the learned trial Court. The plaintiffs approached this Court in Civil Revision No.821 of 1985 which was allowed by order dated 24.1.1989 and the plaintiffs were permitted to abandon the suit against defendants 3 and 4. Hence, the suit was tried between the plaintiffs and defendants 1 and 2 only. 7.On considering the pleadings, the learned trial Court framed the following issues : (i)Is the suit maintainable as laid ? (ii)Is there any cause of action to bring the suit ? (iii)Whether the plaintiffs have acquired occupancy status in respect of the suit land or have acquired the occupancy status by adverse possession; and (vi)To what relief/reliefs the plaintiffs are entitled to ? 8.Upon issues being framed, the plaintiffs examined six witnesses and exhibited (15) fifteen documents marked as Exts.1 to 13/d, whereas, defendants - respondents did not adduce any oral or documentary evidence. The learned Court below on considering the evidence adduced by the plaintiffs dismissed the suit on the following findings :- (i)The documents under exhibits 1 to 2/b are not genuine documents and they have been manipulated for the purpose of the suit. (ii)The plaintiffs have signally failed to establish that they possess the suit land at any point of time and, as such, question of acquiring occupancy status in respect of the suit land or any title by adverse possession over the same does not arise. Thus answering issue No.3, the learned trial Court answered issue Nos.1, 2 and 4 by holding that the suit is not maintainable and there is no cause of action to bring the suit and the plaintiffs are not entitled to the reliefs as prayed for. 9.It appears that in order to come to the above conclusion, the learned trial Court while deciding issue No.3, misconstrued Ext.5, which was a Record of Rights produced by the plaintiffs to prove that they were settled raiyats of mouza Patia, by holding that the said R.O.R. does not show that the suit land is a part and parcel of the lands covered thereunder. On such conclusion, the learned trial Court arrived at a finding that there is no oral or documentary evidence showing that the forefathers of the plaintiffs or the plaintiffs are the settled raiyats of village Patia. He disbelieved the rent receipts due to want of a seal of Kanika Estate affixed thereon. On such conclusion, the learned trial Court arrived at a finding that there is no oral or documentary evidence showing that the forefathers of the plaintiffs or the plaintiffs are the settled raiyats of village Patia. He disbelieved the rent receipts due to want of a seal of Kanika Estate affixed thereon. Only because, there was no seal on the rent receipts, the learned trial Court came to the conclusion that the said documents were not genuine. It may be stated here that the respondents who were defendants 1 and 2 in the suit have never denied in their written statement with regard to grant of such rent receipts by the ex-Estate of Kanika nor they have pleaded that the said documents were manipulated ones. The learned trial Court also presumed that had the plaintiffs been in possession over the suit land, the suit lands could have been recorded in their name during settlement operation. In order to come to the above finding, it appears that the learned Court below ignored the settled position of law that the Record of Rights do not create or extinguish title of a person over the property for which such Record of Rights are published. It further appears that the learned trial Court disbelieved the evidence of P.W.1 just because, his name has not been recorded in respect of the suit land during the current settlement. Since it was the case of the plaintiffs that they were in possession over the suit land from the time of their predecessor, it was not expected that the name of P.W.1 could have been recorded in the Record of Rights. It also appears that on flimsy grounds, the learned trial Court disbelieved the evidence of P.W.2. Though P.W.3 stated that he has seen the plaintiffs possessing the disputed property, but just because, he was aged about 9 years by the time the forefathers of the plaintiffs alleged to have acquired the property, the learned trial Court disbelieved him. As there was some contradictions with regard to the area of the suit land in the evidence of P.W.4, the learned trial Court held that his evidence does not inspire any confidence. As there was some contradictions with regard to the area of the suit land in the evidence of P.W.4, the learned trial Court held that his evidence does not inspire any confidence. The plaintiffs having not called for the copy of the EKPADIA filed by the Ex-Raja of Kanika, the learned trial Court came to the conclusion that the plaintiffs have not discharged their burden to establish that the ex-landlord has submitted EKPADIA to the Tahasil in respect of the suit land and, therefore, adverse inference can be drawn against the plaintiffs. Thus concluding, it appears that the learned trial Court dismissed the suit on the findings stated above. 10.It is, therefore, found that the learned trial Court disbelieved the plaintiff’s possession of the suit schedule property even if the defendants-respondents though filed a written statement, chose not to adduce any evidence nor the evidence of witnesses examined by the plaintiffs-appellants were shaken in any manner. The rent receipts produced by the plaintiffs marked as Exts.2 to 2/b have been rejected by the learned trial Court only on the ground that it does not contain the seal of the ex-State of Kanika. This Court on examining the said rent receipts finds that the learned trial Court has not applied its judicial mind in coming to the conclusion that the said rent receipts are not genuine. The conclusion of the trial Court that as one of the witnesses examined by the plaintiffs was a minor at the time when the forefathers of the plaintiffs possessed the land, even though, he was aged about 56 years at the time of giving his evidence, cannot be sustained in the eye of law as he also stated that the plaintiffs are continuing in possession over the disputed property. The burden of proof placed on the plaintiffs by the learned trial Court by holding that the plaintiffs should have established possession by producing the “EKPADIA” filed by the ex-intermediary cannot be accepted as the defendants - State were required to rebut the said assertion of the plaintiffs by producing the said EKPADIA which was under the custody of the defendants-State to show that the ex-intermediary has not named the plaintiffs-appellants in such EKPADIA. 11.As already stated, the R.O.R. of the year 1973 cannot be a conclusive proof of title of the defendants, just because, the plaintiffs did not prefer any revision before the higher authority against the said R.O.R. It further appears, as already discussed above, the learned trial Court misconstrued the R.O.R., Ext.5, which was produced by the plaintiffs to prove that they were settled raiyats of mouza - Patia, by holding that the said R.O.R. does not relate tot he suit land. 12.It is naïve to state that Section 23 of the Orissa Tenancy Act defines “settled raiyat” and Section 24 thereof indicates that a settled raiyat of a village will have occupancy right over the properties possessed by him as a raiyat in the said village. Section 24 (2) thereof envisages, inter alia, that every person, who being a settled raiyat of village within the meaning of Section 23, held land as a raiyat in that village at any time between the tenth day of September, 1891 and the commencement of the Orissa Tenancy Act shall be deemed to have acquired a right of occupancy in that land under the law then in force, but nothing in the Sub-section shall affect any decree or order passed by a Court before the commencement of the Orissa Tenancy Act. It is, therefore, clear that the plaintiffs were settled raiyats of village Patia and they having held the disputed properties as raiyats, were to be construed to be occupancy raiyats over the said land. The finding of the learned trial Court in this regard, therefore, cannot be sustained, more so, when this fact was not denied in the written statement filed by the defendants - respondents, who also never adduced any evidence, either documentary or oral. It is strongly submitted by the appellants that not only there was any specific denial of the plaint allegations by the defendants regarding continuous possession of the plaintiffs for more than the statutory period, but also the defendants adduced no evidence on the question of possession and title, although, there as an issue to that effect. The learned trial Court obviously has missed this question with regard to acquisition of occupancy tenancy of the plaintiffs, they being the settled raiyats of the said village under Sections 23 and 24 of the Orissa Tenancy Act. The learned trial Court obviously has missed this question with regard to acquisition of occupancy tenancy of the plaintiffs, they being the settled raiyats of the said village under Sections 23 and 24 of the Orissa Tenancy Act. It, therefore, transpires that the learned trial Court erred, both in law and facts, in deciding the issues and dismissing the suit. No-doubt, it was argued by the respondents that the plaintiffs must succeed or fail in their own case without being assisted by any latches or lacuna on the part of the defence. But there is clear evidence that the plaintiffs proved their long continuous possession from the time of their forefathers over the disputed property and the learned trial Court instead of coming to a finding that the plaintiffs are continuing to possess the land for more than the statutory period, committed an error in holding that the plaintiffs have not proved their possession over the disputed property. This Court, therefore, comes to the finding that the plaintiffs have remained in possession from the time of their forefathers over the disputed property continuously and uninterrupted for more than the statutory period. The learned trial Court was also wrong in drawing an adverse inference against the plaintiffs in the absence of any defence evidence. 13.In a civil suit, both the parties have to discharge their respective obligations. It is true that the plaintiffs must succeed or fail on their own legs. It is also true that unless the defendants deny the allegations made by the plaintiffs by adducing evidence, there can be adverse inference drawn against the defendants and on the evidence adduced by the plaintiffs together with probabilities, the Court is to draw an inference in favour of the plaintiffs. 14.Therefore, this Court, on carefully and meticulously considering the evidence on record as well as the submissions made by the respective parties along with the provisions of law, particularly, Sections 23 and 24 of the Orissa Tenancy Act, finds that there is sufficient force and merit in the submissions made by the learned counsel for the appellants in support of the case of the appellants. This Court further finds that the learned trial Court approached the case under a wrong premise in dismissing the suit. This Court further finds that the learned trial Court approached the case under a wrong premise in dismissing the suit. 15.For the foregoing reasons, the judgment dated 31.8.1990 and decree dated 15.9.1990 respectively passed by the learned Subordinate Judge, Bhubaneswar in Title Suit No.40 of 1983 is set aside and the suit of the plaintiffs is decreed in full granting the reliefs for declaration of right, title, interest and possession of the appellants-plaintiffs over the suit land and permanent injunction as prayed for in the plaint. 16.In the result, the First Appeal is allowed. There shall be no order as to costs. Appeal allowed.