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2016 DIGILAW 53 (ORI)

Villagers of Chirgunikudor v. Labanya Bewa

2016-01-21

D.DASH

body2016
JUDGMENT : D. DASH, J. 1. The appellants who are the villagers of the village Chirgunikudar have called in question the judgment and decree passed by the learned Additional District Judge, Sambalpur in Title Appeal No. 13/12 of 1985-1986. The successors of late Sadhu Pradhan, Bairagi Pradhan and Adikanda Pradhan had jointly filed the suit numbered as T.S. No. 62 of 1980 against the State Sub-Divisional Officer, Block Development Officer, Tahasildar, Tinkbir Gram Panchayat and the villagers of Chirgunikudar arraigning them as defendants therein. The suit was for declaration of plaintiffs right, title and interest and confirmation of their possession over the suit property described in schedule–A of the plaint which are Kata and Ridges of the tank as well as the tank covering the land under plot no. 166, 167 and 178 of holding no.17 of mouza-Chirgunikudar. The suit having been dismissed, an appeal had been filed by the unsuccessful plaintiffs. The lower appellate court having set aside the findings of the trial court, decreed the suit granting the reliefs as prayed for. Therefore, these defendants have filed this appeal under section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiffs’ case is that Sadhu Pradhan, Bairagi Pradhan and Adikandha Pradhan, the three brothers remaining in the joint family had acquired lands in village Chirgunikudar and in order to irrigate those lands for having better cultivation and earning thereof, they had excavated kata and tank on their own land in or about the year 1912 spending money from the joint family funds. It is also stated that they had placed wooden cylinders for channelizing water to their lands at different places of the embankment of the said tank. It is next stated that since the time of excavation of the suit Kata and tank by Sadhu Pradhan, Bairagi Pradhan and Adikanda Pradhan, they continued to enjoy the same and achieve the purposes and after them their successors continued as before and they also maintained those by making necessary repairs as and when needed. In course of time, further ancillary activities were also carried out and they have been enjoying the fruits thereof without any interruption and interference since the time of the Ex-Ruler of the erstwhile State. In course of time, further ancillary activities were also carried out and they have been enjoying the fruits thereof without any interruption and interference since the time of the Ex-Ruler of the erstwhile State. It is further said that even after the merger, the State Government did never pose any obstruction to their such enjoyment. They state to have been carrying out the Pisci-Culture activities over there. It is said that only the agricultural land was surveyed by stick measurement and rent was accordingly collected from the raiyat. It is stated that Ruling Chief of the Ex-State of Bamra in order to bring development in the field of agriculture for overall growth of the farmers as well as the State was allowing individuals for having private irrigation facilities by reclaiming the lands for construction of kata, tank, well, gardens and orchards as also irrigation channels over the land belonging to the State and as a measure of encouragement, no rent was being accessed for the same. Such important works were also been recognized by the administration to have been done by the doers and as such those were being treated as their private properties. It is stated that the Cadastral survey settlement in the year 1927-28 was done half hazardly, there was no attestation proceeding. The then Superintendent thus being not able to determine the improvement works as above, directed that Kata, Tank, Well, Gardens and Orchards as also Water Channels would not be subjected to payment of rent and was to be recorded in Anabadi Khata of the particular village with the name of the beneficiaries enjoying the benefits of such improvement works being indicated in the remark column. Accordingly, in the record of the year 1927-28 settlement, the suit Kata and Tank stood recorded under Anabadi Khata No. 17 of mouza Chirgunikudar with the noting in the remark column that the improvements had been done by Sadhu Charan Pradhan. Since there was no interference from the side of the administration, Sadhu, Bairagi and Adikanda did take no such steps for recording as they continued to remain in peaceful enjoyment of the Kata and Tank and carried out the activities. It is further stated that in the year 1929, the Ex-State of Bamra adopted “Unnatikara Niyamabali” wherein the previous usage of the policies of the Ruling Chief were codified. It is further stated that in the year 1929, the Ex-State of Bamra adopted “Unnatikara Niyamabali” wherein the previous usage of the policies of the Ruling Chief were codified. It is stated that at no point of time either the Tinkbir Gram Panchayat or any of the officials of the State interfered with the possession of the plaintiff. In or about May, 1997, it is stated that Sarapanch of the Gram Panchayat openly expressed about the transfer of the suit Kata and Tank in favour of the Gram Panchayat and so he gave out that he would be undertaking earth work and further improvement. The plaintiffs then protested and did not allow the defendants to do any work over there. The plaintiff’s further case is that they have been in possession of the suit Kata and Tank as before on their own right, title and interest. It is alternatively stated that the plaintiffs have prescribed their right, title and interest by virtue of their long and continuous possession of the suit Kata and tank asserting and exercising independent right although. It is further stated that all-through during the Darbar administration and subsequent to its merger, the State have admitted the said rights of the plaintiffs over the suit Kata and Tank and thus now said right, title and interest over the suit Kata and Tank can never be taken away. The cause of action for filing the suit is said to have arisen on and from 01.05.1979, when Sarapanch expressed about the transfer of suit Kata and Tank as also on 24.04.1980, when the official intimation of the BDO to that effect was received and as those come to cast cloud upon the right, title and interest of the plaintiffs over the suit Kata and Tank. 4. The defendant no. 1 to 4 while traversing the plaint averments denied the excavation of the suit Kata and Tank to have been done over the land by the ancestors of the plaintiff and out of their joint family funds. According to them, few Adibasies who had settled at village Chirgunikudar had reclaimed the lands for agricultural purpose and excavated the Kata and Tank for irrigation of the lands and for the purpose of bathing, as also for other purposes, long prior to the plaintiffs ancestor coming to the village reclaimed the lands there. According to them, few Adibasies who had settled at village Chirgunikudar had reclaimed the lands for agricultural purpose and excavated the Kata and Tank for irrigation of the lands and for the purpose of bathing, as also for other purposes, long prior to the plaintiffs ancestor coming to the village reclaimed the lands there. It is stated that Kata was subsequently assigned with plot no. 166 during the settlement of the year 1927-28. Those Adibasi persons had placed the wooden cylinders and when those became old and damaged, an earthen water escape route was made at the ridges of the Kata. It is stated that sometime after the excavation of the Kata, small tank was constructed by the ancestors of the plaintiffs wherein also all the villagers had put their labour and had also borne the expenses. They have also denied the plaint averments that said suit Kata and Tank were exclusively being possessed and enjoyed by the Sahdu, Bairagi and Adikanda and after them by their successors including the plaintiffs and that they have been always maintaining the same and irrigating their own lands. According to them, all the villagers including plaintiffs use to maintain the suit Kata and Tank collectively till its transfer to the Panchayat and thereafter they have been also doing the same under the supervision of the Gram Panchayat. It is stated that the entry of the name of Sadhu Charan Pradhan in the remark column of the record on 1927-28 settlement only in respect of land under plot no.178 (bandha) standing in the Anabadi Khata of village Chirgunikudar in the name of Raj Sarkar as the doer is baseless and that cannot be said to have either created or recognized the right of said Sadhu Charan Pradhan so also for his successors over the suit property. It has also been the case of those defendants that the plaintiffs have not obtained required certificate from the Darbar Administration of the Ex-State of Bamra as mandated by Unnatikar Niyamabali and as such the suit property has all along been the Government property and it has been thus been validly transferred to the Gram Panchayat. The defendant no. 5 and 6 in their written statement have averred in the similar line in denying the right, title and interest of the plaintiffs over the suit properties. The defendant no. 5 and 6 in their written statement have averred in the similar line in denying the right, title and interest of the plaintiffs over the suit properties. They assert that the suit Kata and Tank are Government properties standing on the Government land and the plaintiffs have no right, title and interest over the same. Almost similar version has been presented in other written statements. 5. The trial court on such rival pleadings before it, framed six issues including the most important one as regards excavation of Bandha, Kata and renovation of ridges and right, title and interest of the plaintiffs as claimed. Taking up those for decision, categorically answer has been rendered on those issues against the plaintiffs. Earlier the appellate court has set aside the said finding on the vital issues and answered those in favour of the plaintiffs. That has ultimately favoured the plaintiffs in getting their suit decreed. 6. The appeal by order dated 13.10.1988 has been admitted on the following substantial question of law:- (1) Whether in the absence of any specific order under the provisions of Orissa Merged Territories (Village Offices Abolition) Act, 1963 and the land not being heritable under the land laws of the estate in question, can the plaintiff acquire any right at all even assuming the plaintiff’s forefather had excavated the tank; (2) Whether the lower appellate court was right in its conclusion that the provisions of Merged Territories (Village Offices Abolition) Act, 1963 is not applicable to the suit property as the suit property happens to be a tank? 7. Learned counsel for the appellants submits that the finding of the lower appellate court in reversal to those rendered by the trial court is unsustainable in the eye of law. According to him, even if a person is said to have excavated the tank and it finds mention in the ROR, the same is not enough to clothe him with the title in respect of said suit Kata and Tank when the same is being used by the villagers all along for all such purposes there arises no scope for acquiring any right over the same by prescription. His next submission is that the evidence let in by the plaintiffs that they have been using the water of the tank for bathing feeding cattle, fishing and all other such purposes including carriage of the water for irrigation of their lands, those are not sufficient to accept the case of the plaintiffs that it is their exclusive property. According to him, the lower appellate court has missed all these points. It is further contended that when the lands stand under the Anabadi Khata in the name of Raj Sarkar, such excavation even if accepted for a moment to have been done by the ancestors of the plaintiffs still they cannot be held to be having the right, title and interest over the suit property. He also contends that as per the Revenue Niyamabali of the Ex-State of Bamra certificate have not been issued by the State as required there under and when the plaintiffs have failed to prove by evidence regarding compliance of provision of those Niayamabali which were having the force of law at the time, their claim is not at all entertainable. Thus, according to him, the lower appellate court has made erroneous approach to the matter and it has taken the start completely from a wrong angle and therefore, the end result has also been faulty. Also those rules according to him, have been misinterpreted by the lower appellate court while recording the findings in favour of the plaintiffs and the view that in the absence of any rule indicating the consequences for non-compliance of the rules, noncompliance has no material bearing on the subject is wholly erroneous. Learned counsel appearing on behalf of the State reiterates the submission advanced by the learned counsel for the appellants. 8. In view of above rival submissions, this Court framed the following substantial question of law for being devolved into and answered first. Whether the lower appellate court eared in law by holding the claim of the plaintiffs over the subject matter of suit as entertainable in the eye of law in view of the same being not so certified and entered in the register as mandatorily required under the Revenue Niyamabali of Ex-State of Bamra, having the force of law and in saying that they have acquired right over it as such and by long possession? 9. 9. Learned counsel appearing on behalf of the contesting defendants submits that user of the water from the suit Kata and Tank by the villagers for different purpose does not clothe them with any right and therefore, the lower appellate court has rightly not given so much emphasis to it in recording its finding viewing it as the common feature that almost in every village a tank of even an individual is also used by the villagers for the different purposes. He next contends that the suit Bandha and Kata being excavated by the ancestors of the plaintiff which has been established by evidence and as it finds mention in the remark column of Ext. 1 coupled with the oral evidence of the witnesses examined on behalf of the plaintiffs, when also nothing is shown that compliance of the provision of Revenue Niyamabali of the Ex-State of Bamra were mandatory for accrual of the title in favour of the excavator, the lower appellate court did commit no mistake in whittling down the said contention as regards the non-compliance of the Revenue Niyamabali in the matter as standing in the way of the claim of right, title and interest by the plaintiffs. According to him, the lower appellate court has rendered the findings upon threadbare analysis of the evidence on record in the touchstone of the rival pleadings keeping in view the legal position in respect of the points it formulated. Therefore, his contention is that the judgment and decree of the lower appellate court needs no interference in this second appeal. 10. The plaintiffs in the present case have claimed in para 3 of the plaint that Sadhu, Bairagi and Adikanda excavated the Kata and Tank on their own lands towards the year 1912. But that appears to have been given a goodbye during the suit, when they have placed reliance upon Ext. 1. It is the settled position of law that when a person claims right over the land belonging to the State and standing recorded as such, he must establish that such recording is erroneous which is not the case here. Ext. 1 goes to show that the suit plots have been recorded in the year 1926-27 as Anabadi lands of the village Chirgunikudar standing in the name of Raj Sarkar with note only in respect of plot no. 178 measuring Ac. Ext. 1 goes to show that the suit plots have been recorded in the year 1926-27 as Anabadi lands of the village Chirgunikudar standing in the name of Raj Sarkar with note only in respect of plot no. 178 measuring Ac. 11 decimals that Sadhu Charan Pradhan had excavated the same. This Ext. 1 itself destroys the case of the plaintiffs that it was on their private land. They having proved the above document, now cannot again wriggle out of it. So, the case of the plaintiffs is now simply based on documentary evidence i.e. the entry in the remark column of the said Ext. 1, and that too in respect of the plot no. 178 measuring Ac. 11 decimals (Tank) and that is said to be the basis of their right, title and interest besides the oral evidence as laid showing user. 11. In the book titled as Orissa Merged (Laws) Act and the Central Merged (Laws) Act along with the Tenancy Laws of Ex-State of Athagarh-Athamallik, Bamra-Baramba, Banai-Boudh, Dasapalla-Dhenkanal and Gangpur complied by Mr. R.N. Dash, Advocate, at page 102, the Revenue Niyamabali of the State of Bamra which were having the force of law in the State find mention. 12. In that very Revenue Niyamabali of the Ex-State of Bamra which were having the force of law in the State, there remains dedicated chapter for such type of developmental work being carried out in the State. Those relevant Niyamabali read as under:- (i) Any person or persons jointly or individually, spending money from their own sources if have done any such developmental works, he or they are to make a prayer to the State authority by stating the type and place of work indicating expenses, dimension of the work as also naming the persons who had encouraged and responsible for the work and date of order for carrying out such works, for grant of a certificate to that effect and the copy would be given to him and it would be entered in the register maintained in the Sub-Registrar’s Office in respect of each pragana and mouza and in that event the copy of the same would be given to the person concerned on receipt of cost. It is next stated that if such developmental work has been done during the period of one Settlement, its rent will not be increased during the period of the coming settlement. The developmental works include excavation of Tank, Well, Bandha and Canal for irrigation, Orchard, Plantation and Pisci-culture.” It also finds mention in the other rules that those person or persons who have excavated the tank after they take water for irrigation of their lands, the excess water would be taken by the villagers and the record will remain with Sarva Sadharana Satwa. Rule 4 is of further significance which on proper construction fortifies the view that the rules are undoubtedly mandatory. It says that if those persons who are being deprived of such property improved by them in case of recovery of State dues or resettlement, those persons whose names have been registered as such as required under the rule would be appropriately paid with such sum as so collected or from out of the salami as so fixed. 13. In the present case, admittedly nothing has been shown that any certificate was either applied for or granted to that effect. Rule 14 of the Hakiyati Gounti Patta at page 105 of the book (supra) states that for encouragement of Gountia and tenants of the village to construct tank, Bandh, Kata and Canal, Orchards for improvement of village without help of the State ultimately said certificate has to be granted in his favour and then it would be the private property finding mention as such in the important register. In view of above, it is not necessary that the rule must state that as to what would happen in the event of their non-compliance. Once it lays down the procedure for recognition, the same if not followed, certificate if not taken and entry in the register if not made, the consequence is that claim as such is not entertainable at any subsequent time. The settled principle always remains that when the law prescribes something to be done following procedure laid down, those if not followed; the purpose for which those aim cannot be achieved. The settled principle always remains that when the law prescribes something to be done following procedure laid down, those if not followed; the purpose for which those aim cannot be achieved. In my conserved view, it is a question of recognition that the developmental activities to have been so carried out by the person out of their own funds over the land of the State and as such it was the necessity in law to be so mentioned in the register of the State to avoid any other claim for all times to come and to finally conclude that controversy once for all. The objectives clearly appear to be two folds; one to clothe the persons who have spent their own funds in doing such development activities for the good of the public of the State with the required right in recognition of their generous acts and the other one, to prevent any false or frivolous claim to spring up in future and to put a stop to it forever. So, once that has not been done, the question of claiming any such right at future time does not arise. In that view of the matter, the factum of excavation of the suit Bandha, Kata and Ridges by Sadhu Charan Pradhan when has never been recognized by the State as such as required under the Revenue Rules and having not been so entered in the relevant register, by grant of certificate to that effect, the same squarely stands as a bar for advancement of the claim as made by the plaintiffs. Thus, here in the absence of above recognition as required under the Revenue Rules of the Ex-State of Bamra State which were then having the force of law simply digging of the Tank at the instance of ancestors of the plaintiffs even if accepted does not come to the aid of the plaintiffs in establishing any right over that Kata, Ridges and Bandha. Furthermore, in the facts and circumstances as those emanate from evidence as also viewing the nature of property, the finding of the lower appellate court in favour of plaintiffs’ right and as declared is unsustainable. This Court in case of State of Orissa Vs. Furthermore, in the facts and circumstances as those emanate from evidence as also viewing the nature of property, the finding of the lower appellate court in favour of plaintiffs’ right and as declared is unsustainable. This Court in case of State of Orissa Vs. Anuchhaya Patel and Others (S.A. No. 80 of 1978) has dismissed the appeal on ground of limitation and the Court having found the appeal to be barred by limitation ought not to have proceeded further touching the merit. Therefore, the decision does not come to the rescue of the plaintiffs. Aforesaid discussion and reasons provide answer to the newly framed substantial question of law which goes in favour of the appellants and thus others no more survive for being further answered. The judgment and decree of the lower appellate court are accordingly held to be unsustainable. 14. In the result, the appeal stands allowed. The judgment and decree of lower appellate court are hereby set aside and those passed by the trial court stand restored. There would, however, be no order as to cost.