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2016 DIGILAW 1257 (ORI)

Pitambar Champati v. State of Orissa

2016-12-21

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. The plaintiffs are the appellants against a confirming judgment. 2. The case of the plaintiffs is that the suit schedule properties appertain to Anabadi Holding of Killa Patia and recorded as such in the R.O.R. published in the year 1931. They are the settled raiyats of village Patia. Their predecessors in interest were the tenants under the Raja of Patia. The suit properties had been reclaimed by the forefathers of the plaintiffs, who had cleaned the jungle, levelled the land and fit the same for cultivation in the year 1944. They were in the possession of the properties by raising different crops and vegetables. After their death, they are in peaceful and continuous possession over the properties. While the matter stood thus, the estate of Patia was purchased in auction sale by Raja of Kanika. The Raja of Kanika received rent and granted rent receipts to the forefathers of the plaintiffs. During hal settlement, the suit properties have been wrongly recorded in the Government Rakhit Khata. The defendants contemplated to lease out the land to the outsiders. Notwithstanding wrong recording of the land in the R.O.R., they are in peaceful and continuous possession of the suit properties to the knowledge of the entire world. They have acquired valid title over the same by way of adverse possession. With this factual scenario, the suit was filed for declaration that the plaintiffs have acquired the right of tenancy by adverse possession or occupancy status in respect of the suit ‘B’ schedule properties. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that neither the predecessors in interest of the plaintiffs were the tenants under the Raja of Patia nor the plaintiffs were the settled raiyats of village Patia. The suit schedule properties had not been reclaimed by the forefathers of the plaintiffs. Neither the predecessors of the plaintiffs nor the plaintiffs were in possession of the suit properties. The land in question is communal in nature. Kissam of the land is Jungle-II. The plaintiffs were not the tenants. They had not paid any rent to Raja of Kanika at any point of time. At the time of vesting, no paper was filed by the intermediary evidencing that the plaintiffs were the recorded tenants. The land in question is communal in nature. Kissam of the land is Jungle-II. The plaintiffs were not the tenants. They had not paid any rent to Raja of Kanika at any point of time. At the time of vesting, no paper was filed by the intermediary evidencing that the plaintiffs were the recorded tenants. If any rent receipt has been issued, the same are forged and fabricated documents. In the current settlement, the land has been recorded in the name of Government Rakhit Khata. The Government is the paramount owner of the properties. 4. Stemming on the pleadings of the parties, the learned trial court struck six issues. To substantiate the case, the plaintiffs had examined seven witnesses and on their behalf, ten documents were exhibited. Neither any evidence was adduced by the defendants nor any document had been exhibited. The learned trial court came to hold that the plaintiffs have failed to prove that they have acquired occupancy status in respect of the suit land. The plaintiffs have also failed to establish that they are in possession over the suit land. Held so, the learned trial court dismissed the suit. The plaintiffs unsuccessfully challenged the said judgment and decree passed by the learned trial court in the court of the learned 2nd Additional District Judge, Bhubaneswar in Title Appeal No.80/8 of 1990/89, which was eventually dismissed. 5. The Second Appeal was admitted on 23.12.1994 on the following substantial questions of law:- “Whether the courts below were justified in rejecting cogent documentary evidence adduced by the plaintiffs in support of their title, because of the entry in the recent Record of Rights and non-production of the tenant’s ledger submitted by the ex-intermediary at the time of vesting ?” 6. Heard Mr. Pattnaik, learned Advocate for the appellants and learned Additional Government Advocate for the respondents. 7. Mr. Pattnaik, learned Advocate for the appellants submitted that the plaintiffs are the settled raiyats of village Patia. Exts.3 to 6 show that the plaintiffs and before them, their forefathers were holding other lands than the suit land in the village Patia as raiyats. The learned trial court came to hold that the plaintiffs and their forefathers were holding the land in the village Patia as raiyats, but the learned appellate court has not rendered any finding. Exts.3 to 6 show that the plaintiffs and before them, their forefathers were holding other lands than the suit land in the village Patia as raiyats. The learned trial court came to hold that the plaintiffs and their forefathers were holding the land in the village Patia as raiyats, but the learned appellate court has not rendered any finding. He further submitted that for declaration of status of occupancy right, a person must be a settled raiyat of the village under Section 23(1) of the Orissa Tenancy Act, 1913 (hereinafter referred to as O.T.Act). The civil court has jurisdiction to decide the occupancy right of settled raiyat and as such the suit is maintainable. Relying on Ext.9, he further submitted that the plaintiffs are the recognised tenants of Patia estate. Even if the document is not registered, the same can be taken for collateral purpose. Thus, the conclusion is irresistible that the forefathers of the plaintiffs were in possession in the year 1942. He further submitted that occupancy right is a creature of statute and can be acquired only under the provisions of O.T.Act. After vesting of estate in the State, the plaintiffs became the deemed tenants under Section 8 (1) of the Orissa Estates Abolition Act (hereinafter referred to as “O.E.A.Act”). He relied on the decisions of this Court in the cases of Indramani Mohanty and others Vrs. Purusottam Ray and others, 1971 (1) CWR 730, Jagannath Nanda Vrs. Bishnu Dalei and others, 40(1974) CLT 888, Naba Kishore Panda Vrs. Bulendra @ Bulla Das and others, 40(1974) CLT 1152, Hansraj Kooverji Rathor Vrs. State of Orissa, AIR 1980 Orissa 184, Radhamani Dibya and others Vrs. Braja Mohan Biswal and others, AIR 1984 Orissa 77, State of Orissa Vrs. Sukru Mirdha, AIR 1984 Orissa 83, Manmohan Rout (and after him) Sundari Devi and others Vrs. State of Orissa and others, 1992 (II) OLR-529, Jaya Naik and others Vrs. State of Orissa, 2010 (suppl.-1) OLR 346 and Sukanta Sahu and others Vrs. State of Orissa and another, 2014 (1) CLR 863. 8. Per contra, the learned Additional Government Advocate supported the judgments. He contended that the courts below negatived the claim of the plaintiffs. Both the courts below held that neither the father of the plaintiffs nor the plaintiffs were in possession of the land. The rent receipts of the year 1942 are forged. The kissam of the land is Jungle-II. 8. Per contra, the learned Additional Government Advocate supported the judgments. He contended that the courts below negatived the claim of the plaintiffs. Both the courts below held that neither the father of the plaintiffs nor the plaintiffs were in possession of the land. The rent receipts of the year 1942 are forged. The kissam of the land is Jungle-II. After coming into force of the O.E.Act, the land vested in the State free from all encumbrances. 9. Before proceeding further, it is apt to refer the decisions cited by Mr. Pattnaik, learned Advocate for the appellants. In Jagannath Nanda (supra), this Court held that under the tenancy laws a formal document is not necessary to create an agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent whereafter he would acquire the status of a tenant. The same was view taken in Manmohan Rout (supra). 10. In Indramani Mohanty (supra), this Court held that the word ‘reclamation’ means bringing into cultivation of land not previously cultivated. 11. In Naba Kishore Panda (supra), the plaintiff was inducted as tenant by the marfatdars of the deity on the basis of a permanent lease. The same was held to be void since no permission was accorded by the Commissioner of Endowments. This Court held that if the lease deed is void and the lessee gents possession in pursuance of that deed, his possession becomes adverse and the nature of his possession, without anything more, would be no more than a lessee’s possession, or in other words, a tenant’s possession as stipulated in the void lease deed. The decision is distinguishable inasmuch as no lease deed was executed by the ex-intermediary. 12. In Hansraj Kooverji Rathor (supra), this Court held that when the plaintiff has occupancy right in respect of the property, it is in no way affected by the notification under Section 3 of the Orissa Estates Abolition Act and the property does not vest and also the provisions of Section 5 of the O.E.A. Act are not applicable to the disputed property. 13. In Radhamani Dibya (supra), the Full Bench of this Court held that Section 8 (1) of the Orissa Estates Abolition Act makes no provision for an application. No enquiry is contemplated under this section. 13. In Radhamani Dibya (supra), the Full Bench of this Court held that Section 8 (1) of the Orissa Estates Abolition Act makes no provision for an application. No enquiry is contemplated under this section. The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before the date of vesting. It was further held that in determining the question whether a bhagchasi is a servant or a tenant, the terms of the agreement and the whole circumstances must be looked into before deciding the point. Under Section 3 (23) of the Orissa Tenancy Act 'tenant' has been defined to mean a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that person. In order to acquire the status of a tenant, two conditions must be satisfied. First, a person must be holding land under another person. Secondly, he is, or but for a special contract would be, liable to pay rent for the land. "Rent" means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use and occupation of the land held by him. A bhagchasi cultivates or possesses land lawfully and, not as a trespasser. Thus, he has an interest in the land for the period of the lease. A bhagchasi can be tenant under Section 3 (23) of the O. T. Act. 14. In Sukanta Sahu (supra), in the facts and circumstances of that case, this Court held that the plaintiffs held the disputed properties as raiyats continuously and interruptedly for more than the statutory period. There is no specific denial of allegations. Non-production of Ekpadia and recording of the suit land in the Rakhit Khata of the Hal Settlement cannot take away the right of the plaintiffs. 15. The submission of Mr. Pattnaik, learned Advocate for the appellants that the forefathers of the plaintiffs were the settled raiyats of village Patia, reclaimed the suit schedule properties, made it fit for cultivation and remained in possession of the same and as such they were settled raiyats, is difficult to fathom. 15. The submission of Mr. Pattnaik, learned Advocate for the appellants that the forefathers of the plaintiffs were the settled raiyats of village Patia, reclaimed the suit schedule properties, made it fit for cultivation and remained in possession of the same and as such they were settled raiyats, is difficult to fathom. The courts below, on an anatomy of the pleadings and evidence on record, both oral and documentary, came to hold that neither the forefathers of the plaintiffs nor the plaintiffs were in possession of the suit schedule land at any point of time. The same was affirmed by the learned lower appellate court. The findings of the learned trial court that the forefathers of the plaintiffs were the settled raiyats of village Patia cannot be construed to mean that they were the settled raiyats in respect of suit schedule land. In view of the same, the decisions cited by Mr. Pattnaik, learned Advocate for the appellants, are distinguishable on facts. 16. The rent receipts have been marked as Exts.10/1, 10/A-II and 10/b-III. As would be evident from the said rent receipts, rent was paid in the year 1942. The plaintiffs assert that their forefathers reclaimed the suit property in the year 1944. The learned trial court came to hold that when the plaintiffs assert that their forefathers reclaimed the suit land in the year 1944, how they could pay rent in the year 1942. It further held that the documents have been manufactured for the purpose of the suit. No explanation is forthcoming as to how rent was paid in the year 1942. Further the kisam of the land is Jungle-II. At the time of vesting the ex-intermediary had not produced Ekpadia in the name of any tenant. There is also no document on record that the tenant ledger was opened in the Tahasildar’s office in the name of the forefathers of the plaintiffs. Sec. 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. Sec. 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. In view of the same, the inescapable conclusion is that the suit land vested in the State free from all encumbrances and as such the State is the paramount owner of the land. The substantial question of law is answered accordingly. 17. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.