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2016 DIGILAW 1069 (ORI)

State of Orissa v. Dillip Kumar Sahoo

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. The defendants are the appellants against a reversing judgment. 2. Respondents as plaintiffs instituted the suit for declaration of right, title, interest and possession over the suit land and other consequential reliefs. The case of the plaintiffs is that the suit land is a part of Sabik Khata No.148, Plot No.2770 area of Ac.15.12 decimals. The property originally belongs to the deity Baladev Jew of Keonjhar. Kirtan Sahoo, the predecessor of the plaintiffs, acquired the land described under Schedule–A & B of the plaint on the basis of lease granted by ex-intermediary in the year 1958-1960. The properties described under Schedule-C and B of the plaint were purchased by Kirtan Sahoo. They are in possession of the properties from the time of their predecessor on payment of rent to the appropriate authority. They had established a rice mill on a portion of the land after obtaining permission from the appropriate authority. Subsequently a coke briquettes factory was established over the same. Their residential house situates over a part of the property. They being a lessee under the ex-intermediary and thereafter the State having accepted them as tenants on payment of rent, they are deemed tenants under Sec. 8(1) of the Orissa Estate Abolition Act. When the Tahasildar refused to receive rent on the ground that the property has been recorded in the name of the State in the Hal Settlement record of rights, they instituted the suit. 3. Pursuant to issuance of summons the defendants entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that Sabik Plot was having an area of Ac.311.80 dec. The same was recorded in the name of the deity Baldev Jew. The intermediary estate vested in the State on 18.03.1974. After vesting, the properties have been recorded as reserved forest in the Hal settlement record of rights in the name of the State. Thus the State has become the owner of the property. The plaintiffs have no semblance of right, title and interest over the same. 4. On the inter se pleadings of the parties, learned trial court framed seven issues, which are as follows; “1. Whether the suit is maintainable? 2. Whether the plaintiffs have any cause of action to bring the suit? 3. Whether the plaintiffs have acquired valid title over the suit land ? 4. 4. On the inter se pleadings of the parties, learned trial court framed seven issues, which are as follows; “1. Whether the suit is maintainable? 2. Whether the plaintiffs have any cause of action to bring the suit? 3. Whether the plaintiffs have acquired valid title over the suit land ? 4. Whether the plaintiffs are in possession of the suit land since 1958 ? 5. Whether the plaintiffs have acquired title by prescription. 6. Whether the entries made in the Hal R.O.R in respect of the suit land are legal ? 7. To what relief, if any, the plaintiffs are entitled ?” 5. To substantiate the case, the plaintiffs had examined six witnesses and on their behalf twenty three number of documents had been exhibited. On behalf of the defendants, one witness was examined. 6. Learned trial court came to hold that the documents filed by the plaintiffs, i.e., rent receipts showing payment of rent to the then Debottar Manager, documents about installation of rice mill and coke briquettes factory are not seriously challenged by the State. Thus the State has granted these documents and virtually admitted about the existence of different structures. There is overwhelming documentary evidence in support of possession of the plaintiffs over the suit land. Oral evidence of the plaintiffs proves the factum of possession of the plaintiffs after the death of Kirtan Sahoo. Though no application is necessary under Sec. 8(1) of the OEA Act, for settlement of the land, but no where the State has recognized the rights or possession of the plaintiffs over the suit plot. Thus the plaintiffs do not acquire any valid title over the suit land. The plaintiffs do not acquire title over the suit land by adverse possession. The entries in Hal record of rights cannot be declared to be illegal. Held so, learned trial court dismissed the suit. Assailing the judgment and decree passed by the learned trial court, the plaintiffs preferred appeal before the learned District Judge Keonjhar, which was registered as Title Appeal No.25 of 1991. The learned lower appellate court came to hold that Kirtan Sahoo was in possession of the suit land immediately before vesting of the estate. Assailing the judgment and decree passed by the learned trial court, the plaintiffs preferred appeal before the learned District Judge Keonjhar, which was registered as Title Appeal No.25 of 1991. The learned lower appellate court came to hold that Kirtan Sahoo was in possession of the suit land immediately before vesting of the estate. Under Sec. 8(1) of the O.E.A. Act the person in possession of the land as a tenant before the Act came into force would be a deemed tenant and such a declaration can be given by the civil court. The findings of the trial court that no where State has recognized the rights and possession of the plaintiffs or Kirtan Sahoo over the suit land is not correct. Thus the question of recognition of the status of the plaintiffs by the State would not stand on their way. There being no dispute with regard to the fact of correspondence of the Sabik and Hal record of rights, the learned trial court should not have any doubt to hold that the record of rights now under challenge does not relate to the suit land. The plaintiffs are entitled to be held as tenants under the State in respect of the suit property. Held so, learned lower appellate court allowed the appeal. 7. The appeal was admitted on 23.8.2001 on the following substantial questions of law: “(B) Whether the lands in dispute comprised in Schedules-A to E of the plaint being part of Sabik Plot No.2240/2270 under Khata No.148 measuring Ac.311.80 non-specification of the area actually in dispute and without any trace map appended to the plaint, the suit is defective for non-compliance of the provisions contained in Order VII Rule 3 of the Code Civil Procedure, 1908. (C) Whether no basis for claim over Schedule-E property having been laid and established in the suit, the plaintiffs are entitled to get any relief in respect of the said property. (D) Whether the plaintiffs are entitled to get any relief in respect of C and D schedule lands when they have laid claim on the basis of certain purchases from others in 1960 and 1991 without disclosing or establishing the source of transferable interest of the alleged venders and without any documents having been filed to that effect. (D) Whether the plaintiffs are entitled to get any relief in respect of C and D schedule lands when they have laid claim on the basis of certain purchases from others in 1960 and 1991 without disclosing or establishing the source of transferable interest of the alleged venders and without any documents having been filed to that effect. (E) In so far as the lands covered in Schedules A and B concerned, the plaintiffs claim being that the late Kirtan Sahoo got them by way of lease from the ex-intermediary, the Deity Baldev Jew, whether the alleged lease are invalid for want of sanction of the Commissioner, Hindu Religious Endowment as required under Section 19 of the Act and secondly also, the land in dispute being a reserve forest area whether the alleged leases are invalid because of mischief of Section 3 of the Orissa Act 1 of 1948 and therefore, whether the learned lower appellate Court committed an error of law in holding that by operation of Section 8(1) of the O.E Act the plaintiffs’ became tenants under the State Government consequent upon vesting of the estate. (F) Whether a suit for were declaration that the record-of-right of the current settlement is not binding against the right, title, interest and possession of the plaintiffs and defendants 4 to 7 without any further prayer is hit by the provision of Section 34 of the Special Relief Act.” 8. At the time of hearing of appeal on 22.9.2016, the following substantial questions of law were formulated: “(1) whether the suit is maintainable in absence of notice under Section 80 CPC ? (2) Whether the plaintiff can claim occupancy right in respect of the forest land, in view of embargo under Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 ?” 9. Criticising the judgment of the courts below, Mr. Panda, learned Addl. Government Advocate, submitted that the suit land is recorded as reserve forest. The intermediary interest vested in the State on 18.3.1974 and the State became the owner since the date of vesting. Further the schedule properties have never been settled in OEA proceeding in favour of Kirtan Sahoo or any of his legal heirs. Thus the plaintiffs do not acquire any title. He further submitted that no notice under Sec. 80 CPC was issued before institution of suit against the Government. Further the schedule properties have never been settled in OEA proceeding in favour of Kirtan Sahoo or any of his legal heirs. Thus the plaintiffs do not acquire any title. He further submitted that no notice under Sec. 80 CPC was issued before institution of suit against the Government. The suit schedule lands are not identifiable. The same belong to deity Baladev Jew of Keonjhar. No permission of the Commissioner of Endowments under Sec. 19 of the Orissa Hindu Religious Endowments Act was taken before alienation of land and, as such, the alleged deeds are void. 10. Per contra, Mr. Mohanty, learned counsel for the respondent no.1, submitted that before institution of the suit, notice under Sec. 80 CPC had been duly served. The defendant Nos.1 to 3 did not whisper a word in the written statement denying the averments of the plaint. The office copies of the notice under Sec. 80 CPC along with the registration receipts and the acknowledgements had been marked as exhibits. Even otherwise the defendant nos.1 to 3 cannot be allowed to raise the plea of want of notice in the second appeal for the first time. The acknowledgements were marked as Exits.7 and 7/a. The other documents were inadvertently kept in the lower courts records. The respondent no.1 got the certified copies of the said documents and has filed misc. case for production of additional evidence. These documents can also be accepted as additional evidence without formal proof. Thus notice under Sec. 80 CPC has been duly served on the defendants. He further submitted that Sec. 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Act 1 of 1948) prohibits sale, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal forest or private land without previous sanction of the Collector. No plea with regard to sanction from the Collector had been taken by the defendants. No issue was framed. In view of the same, the defendants cannot be allowed to raise such a question at the second appellate stage. He further submitted that Sec. 5 of the Orissa Estate Abolition Act provides the consequence of vesting of any estate. It provides that on the publication of notification under Sec. 3 or 3A the entire estate including all communal lands etc., forests, mines and minerals etc. He further submitted that Sec. 5 of the Orissa Estate Abolition Act provides the consequence of vesting of any estate. It provides that on the publication of notification under Sec. 3 or 3A the entire estate including all communal lands etc., forests, mines and minerals etc. shall vest absolutely in the State Government free from all encumbrances. Sec. 5 however does not engraft any restriction on grant of any lease by the ex–intermediary. Sec. 5(i) contemplates initiation of proceeding by the Collector in respect of certain kinds of lease made or created any time after 01.01.1946, to find out the correctness or validity of the same. Such a question however does not arise in the present case as Sec. 5 (i) is not applicable to the lease of the present nature. 11. With regard to non-service of notice under Sec. 80 CPC, the defendants have not taken any stand in the written statement. Rather the plaintiffs have exhibited the registered postal receipts evidencing issuance of notice under Sec. 80 CPC. The said plea cannot be urged for the first time in the second appeal. 12. Before adverting to the contentions raised by the learned counsel for both the parties, it will necessary to set out the provisions of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as “OEA Act”) and the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (hereinafter referred to as “Act, 1948”). Sec. 5 of the OEA Act provides for consequences of vesting of an estate in the State. The same is quoted below; 5. Sec. 5 of the OEA Act provides for consequences of vesting of an estate in the State. The same is quoted below; 5. Consequences of vesting of an estate in the State – Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification 1 [in the Gazette] under subsection (1) of Section 3, 2 [or sub-section (1) of Section 3-A] 3 [or from the date of the execution of the agreement under Section 4, as the case may be] the following consequences shall ensure namely : (a) Subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such Intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of this Act.” 13. Sec. 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 deals with prohibition of alienation of communal forest and private lands. Sec. 4 provides transaction of the nature specified in Sec. 3 to be void. The same are quoted hereunder; “3. Prohibition of Alienation of Communal Forest and Private Lands – (1) Notwithstanding anything contained in any other law for the time being in force or any express or implied agreement but subject to the provisions of Subsection (2), no landlord shall, without the previous sanction of the Collector sell, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal forest or private land or create occupancy rights therein: Provided that nothing in this sub-section shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. xxx xxx xxx “4. xxx xxx xxx “4. Transaction of the Nature Specified in Section 3 to be void – (1) Any transaction of the nature prohibited by Section 3 which took place on or after the 1st day of April, 1946, shall be void and inoperative and shall not confer to take away or be deemed to have conferred to taken away any right whatever on or from any party to the transaction.” 14. Sec. 5 of the OEA Act contains a non-obstante clause. It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-sec. (1) of Sec. 3 or Sub-sec. (1) of Sec. 3-A or from the date of the execution of the agreement under Sec. 4, as the case may be the following consequences shall ensue. Clause (a) of Sec. 5 provides that subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other nonraiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of this Act. Thus on the publication of the notification in the Gazette under sub-sec. (1) of Sec. 3 or sub-sec. (1) of Sec. 3-A or from the date of the execution of the agreement under Sec. 4 of the Act, the forests shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of the Act. 15. Sec. 3 of the Act, 1948 contains a non-obstante clause. Sub-sec. (1) of Sec. 3 provides that nothing in the said sub-sec. shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. 15. Sec. 3 of the Act, 1948 contains a non-obstante clause. Sub-sec. (1) of Sec. 3 provides that nothing in the said sub-sec. shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. Any transaction of the nature prohibited by Sec. 3 which took place on or after the 1st day of April, 1946 shall be void and inoperative. Sub-sec. (1) of Sec. 4 provides that nothing contained in the Sub-sec. shall be deemed to invalidate-(i) any such transaction in respect of private land or forest land entered into prior to the 30th day of November, 1947 in favour of any religious, charitable or educational institution or of any hospital or of any local authority or cooperative society registered either under the Madras Co operative Societies Act, VI of 1932 or the Bihar and Orissa Co-operative Societies Act, VI of 1935, as the case may be, of any other public body or institution; 3 (ii) any such transaction in respect of private land or forest land entered into prior to the 30th day of November, 1947 in favour of any person in good faith and for valuable consideration. An exception has been carved out in the proviso with regard to the transaction in respect of private land or forest land entered into prior to the 30th day of November, 1947. 16. Admittedly, the suit schedule land is a vast patch of forest land having an area Ac.311.80 dec. appertaining to Khata Khata No.148, Plot No.2770 of Mouza-Sailong in the district of Keonjhar. The same originally belongs to the deity Baladeva Jew bije Keonjhar. After coming into force of the OEA Act, the land vested in the State of Orissa free from all encumbrance as would be evident from Sec. 5 of the OEA Act. The same could not have been leased out by ex-intermediary after vesting of the State without previous sanction of the Collector. Permission of the Collector is a sine qua non for granting lease of forest land. Any lease made without previous sanction of the Collector in contravention of Sec.3 of Act 1 of 1948 is void under the provision of Sec. 4 of the said Act. The submission of Mr. Permission of the Collector is a sine qua non for granting lease of forest land. Any lease made without previous sanction of the Collector in contravention of Sec.3 of Act 1 of 1948 is void under the provision of Sec. 4 of the said Act. The submission of Mr. Mohanty, learned counsel for the respondents that no plea has been taken in the written statement with regard to the sanction of the Collector, no issue has been framed and as such the said question cannot be raised in the second appeal is difficult to fathom. In paragraph-6 of the plaint, it is stated that the plaintiff went to the Tahasil Office on 10.6.1987 to pay rent. The same was not accepted on the ground that the land has been noted as reserve forest. The plaintiffs on enquiry came to know that due to mistake committed by the settlement authorities, the schedule lands have been recorded as reserve forest and they are not bound by any wrong entry. In the schedule of the property, it is stated that the land has been included in the Ostapura Reserve Forest. In paragraph-10 of the written statement, the defendants 1 to 3 took a specific stand that the lands in the plaint schedule were part and parcel of a vast area measuring Ac.311.80 dec. appertaining to Khata No.148, Plot No.2770 of Mouza-Sailong in 1322 Sal Settlement and at that time it was recorded in the name of Baladev Jew Marfat State. Subsequently, it was found to be the reserve forest. In the hal settlement, the suit lands have been shown to be Ostapur reserve forest. The Collector had not accorded permission for lease or sale of the forest land. Thus the lease by the intermediary in respect of Schedule-A and B land and sale in respect of Schedule-C land, without previous sanction of the Collector in contravention of Sec.3 of Act 1 of 1948 is void. The plaintiffs cannot derive any title from the same. 17. The matter may be examined from another angle. The plaintiffs assert that the land belongs to the deity Baladeva Jew bije Keonjhar. Deity is a perpetual minor. No permission of the Commissioner of Endowments was taken under Sec. 19 of the Orissa Hindu Religious Endowments Act. Any alienation in contravention of Sec. 19 of the said Act is void. Further, suit land is not identifiable. The plaintiffs assert that the land belongs to the deity Baladeva Jew bije Keonjhar. Deity is a perpetual minor. No permission of the Commissioner of Endowments was taken under Sec. 19 of the Orissa Hindu Religious Endowments Act. Any alienation in contravention of Sec. 19 of the said Act is void. Further, suit land is not identifiable. In the schedule, the suit lands have been described by referring to khata number and plot number. As stated above, it is a vast patch of forest land having one khata and plot. Description of the immovable suit property given in the plaint is not sufficient to identify the same. Order 7 Rule 3 CPC postulates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. It is a settled position of law that if the suit property is the whole of the plot in the settlement ROR, mere mention of khata number, plot number and mouza to which it appertains would be sufficient for its identification. But then, where the suit is in respect of a portion of a plot, further particulars are necessary for its property identification. No effective decree can be passed by the court in respect of suit property the description of which as given in the plaint, is not sufficient for its identification. 18. As a sequel to the above discussions, the judgment and decree of the learned lower appellate court is set aside. The appeal is allowed. There shall be no order as to costs.