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2016 DIGILAW 1187 (ORI)

BIRENDRA NATH DAS v. STATE OF ORISSA

2016-12-02

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. - This is an appeal against the judgment and decree dated 14.9.2005 and 24.9.2005 respectively passed by learned Additional District Judge, Kendrapara in R.F.A. No. 31 of 2003 confirming the judgment and decree dated 15.7.2003 passed by the learned Civil Judge (Sr. Division), Kendrapara in Title Suit No. 221 of 1986. 2. The appellants as plaintiffs instituted the suit for declaration of occupancy right over Ac.27.83 decimals of land described in details in the schedule of the plaint. The case of the plaintiffs is that originally the suit land was a part and parcel of Kujanga Estate of Maharaja of Burdhwan. It was an unsurveyed area and locally known as 'Sanatubi' jungle in the last settlement. In the year 1947-48 due to acute shortage of food-grains, the Government granted permission to the ex-landlords to lease out the land by inducting tenants. The then Maharaja of Burdhwan leased out the unsurveyed area after obtaining permission from the Collector. The ancestors of the plaintiffs had approached the Estate Authorities to reclaim and cultivate the suit land. They spent huge amount to fit the land for cultivation in the year 1952. They had also constructed cowsheds and planted fruit bearing trees, dug wells over a portion of it. The Estate Authorities had collected rent in kinds for the year 1957-58 and 1558-59 and also collected salami of Rs. 900/- on 11.11.1952. While the matter stood thus, in the year 1952 the estate vested in the State of Orissa. The ex-landlords did not submit ekpadia in their names. The plaintiffs and their ancestors had approached the Khasmal Tahasildar, Kujanga for acceptance of rent after vesting but it was deferred on plea and other. They had also approached Marsaghai Tahasildar for acceptance of rent as the area came under Marsaghai Tahasil later, but the Tahasildar did not accept the rent. They are residing at a distance of 20 to 25 kilometers from the suit village and taking advantage of it, the suit land was wrongly recorded as jungle. Thereafter, the plaintiffs had preferred their claim before the Forest Settlement Officer and, accordingly, the Forest Settlement Officers excluded the above area from the purview of reservation. They are in possession of the suit land since 1949 from the time of their ancestors as raiyats and, as such they have acquired occupancy right over it. 3. Thereafter, the plaintiffs had preferred their claim before the Forest Settlement Officer and, accordingly, the Forest Settlement Officers excluded the above area from the purview of reservation. They are in possession of the suit land since 1949 from the time of their ancestors as raiyats and, as such they have acquired occupancy right over it. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on different grounds like limitation, want of cause of action, they also challenged the maintainability of the suit under the provisions of Orissa Act 1 of 1948 and Act 8 of 1947. The specific case of the defendants is that the suit land is a Government land. In the hal R.O.R. published in the year 1966, the same has been recorded in the name of Forest Department of the State. Possession of the plaintiffs and their ancestors has been specifically denied. 4. Stemming on the pleadings of the parties, the learned trial court struck six issues. To substantiate the case, the plaintiffs had examined eight witnesses and on their behalf, eight documents were exhibited. The defendants had examined one witness and on their behalf, one document was exhibited. The learned trial court came to hold that the plaintiffs have failed to establish their ancestors' possession over the suit land since the year 1947-48. Further they have also failed to establish the occupancy right or other right. The suit is hit under the provisions of Act, 1948. Due to non-compliance of Section 80 C.P.C., the suit is defective. The suit by several persons belonging to different villages for declaration of occupancy right in respect of the suit properties situated in a different mouza i.e., Sanatubi is not maintainable. Held so, the learned trial court dismissed the suit. The plaintiffs unsuccessfully challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Kendrapara in R.F.A. No. 31 of 2003, which was eventually dismissed. 5. Heard Mr. D.P. Mohanty, learned Advocate for the appellants and Mr. P.C. Panda, learned Additional Government Advocate for the State. 6. Mr. Mohanty, learned Advocate for the appellants argues with vehemence that the suit schedule land originally belonged to the then Maharaja of Burdwan of Kujanga Estate. 5. Heard Mr. D.P. Mohanty, learned Advocate for the appellants and Mr. P.C. Panda, learned Additional Government Advocate for the State. 6. Mr. Mohanty, learned Advocate for the appellants argues with vehemence that the suit schedule land originally belonged to the then Maharaja of Burdwan of Kujanga Estate. The Government have granted permission to ex-landlords to lease out the land in respect of different persons due to acute shortage of food grains in the year 1947-48. The then Maharaja of Burdhwan, who was the landlord of Kujanga Estate, leased out unsurveyed area after obtaining permission from the Collector in favour of different persons. The ancestors of the plaintiffs approached the Estate Authority to reclaim and cultivate the suit land. By spending huge amount, they reclaimed the land and made it fit for cultivation in the year 1952. The Estate Authorities had collected rent from them for the year 1957-58 and 1958-59. In the year 1952, the ancestors of the plaintiffs had approached Marsaghai Tahasildar, Kujanga for acceptance of the rent, but later did not incline to receive the same. The suit land was wrongly recorded as jungle. The ancestors of the plaintiffs approached the forest Settlement Officer, where after the area was excluded form the purview of the reservation. Since the plaintiffs are in possession of the suit land as raiyats, they have acquired occupancy of right over the same. 7. Per contra, learned Additional Government Advocate for the defendants, submits that kissam of the land is forest. No permission was granted to the ancestors of the plaintiffs before vesting the estate in the State. The suit land is a Government land. In the R.O.R. published in the year 1966, the same was recorded in favour of the Government. Both the courts below negatived the plea of the plaintiffs. 8. Before delving deep into the contention raised by the learned counsel for the respective parties, it will be necessary to set out the provisions of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as "O.E.A. Act") and the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (hereinafter referred to as "Act, 1948"). 9. Section 5 of the O.E.A. Act deals with consequences of vesting of an estate in the State. 9. Section 5 of the O.E.A. Act deals with consequences of vesting of an estate in the State. Section 5 (a) makes a reservation and lays down that the intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of the O.E.A.Act. Thus on the publication of the notification in the Gazette under sub-section (1) of Section 3 or sub-section (1) of Section 3-A or from the date of the execution of the agreement under Section 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. 10. Section 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. It provides that 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. The expression "Communal Land" has been defined in Section 2 (a) to mean in relation to cases governed by the Orissa Tenancy Act, lands recorded as Gochar, Rakhit or Sarbasadharan in the record of right or waste lands, which are expressly or impliedly set apart from communal use of villagers, whether recorded as such or not. Section 4 provides transaction of the nature specified in Section 3 to be void. 11. Admittedly, the suit land is a vast patch of forest land. There is no material on record that the Collector had granted permission under the mandates of Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948. The trial court came to hold that R.O.R has been published in favour of the Forest Department and the Forest Department is in possession of the suit land. No documents evidencing the lease granted by the ex-landlord have been exhibited. The appellate court held that the rent receipts are fabricated and have been manufactured for the purpose. Both the courts below have negatived the plea of the plaintiffs' occupancy right over the suit land. The findings of the courts below cannot be said to be perverse. 12. No documents evidencing the lease granted by the ex-landlord have been exhibited. The appellate court held that the rent receipts are fabricated and have been manufactured for the purpose. Both the courts below have negatived the plea of the plaintiffs' occupancy right over the suit land. The findings of the courts below cannot be said to be perverse. 12. In view of the discussions made in the preceding paragraphs, the inescapable conclusion is that appeal does not involve any substantial question of law and deserves dismissal. Accordingly, the same is dismissed. Final Result : Dismissed