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2016 DIGILAW 547 (ORI)

Harachand Nayak v. Sebati Dei

2016-07-22

D.DASH

body2016
JUDGMENT : 1. This appeal has been directed against the judgment and decree passed by the learned Addl. District Judge, Kendrapara in T.A. No. 43/94/10/84 confirming the judgment and decree passed by the learned Munsif, Kendrapara in T.S. No. 230 of 1980. The respondent nos. 1 and 2 as the plaintiffs had filed the suit for declaration of right, title and interest over the suit land and for permanent injunction with further prayer to direct the Tahasildar, Kanika to accept rent with alternative prayer for recovery of possession if found to have been dispossessed therefrom. The suit having been decreed, the appellant being the unsuccessful defendant no. 4 had carried the appeal under Section 96 of the Code of Civil Procedure which has also been dismissed. So the move is before this Court by filing the second appeal under Section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below. It may be stated here that the original plaintiff Muralidhar having died, his legal representatives pursued the suit and are now on record as parties. 3. The plaintiff’s case is that the suit land was owned and possessed by the defendant no. 4 having got it in a partition in his share in a suit with his co-sharers. He possessed the same till 9.3.53 when he parted with the possession in favour of one Sk. Abdul Halim pursuant to a conditional mortgage for sale. Sk.Abdul then possessed the suit land through the plaintiff as his house was five Kms. apart. The defendant no. 4 had also executed a Bhag Patta in favour of the plaintiff. Since the defendant no. 4 did not clear up the loan as promised, Sk. Halim filed a suit i.e. T.S. No. 133 of 1954 against the defendant no. 4 which stood decreed finally on 13.1.56. Sk. Halim then took delivery of possession of the suit land through process of court on 13.6.56/27.6.56 and accordingly possessed it through that plaintiff as a temporary lessee till 1958. Sk. Halim, then sold the said land to the plaintiff by registered sale deed dated 1.10.58 for valuable consideration and delivered possession to him. It is alleged that the defendant no. 4 thereafter though filed T.S. No. 203 of 1958 against the plaintiff and Sk. Sk. Halim, then sold the said land to the plaintiff by registered sale deed dated 1.10.58 for valuable consideration and delivered possession to him. It is alleged that the defendant no. 4 thereafter though filed T.S. No. 203 of 1958 against the plaintiff and Sk. Halim for permanent injunction, he faced a defeat in that. He then made another attempt to get the suit land recorded in his name by filing a petition under Section 5 (A) of the OEA Act which was dismissed. Again he filed OTR Case No. 32 of 1958-59 through his nephew Balaram which was also dismissed. However, it is said that the plaintiff although has been offering the rent to defendant nos. 1 to 3, yet the authority is not accepting the same. In yaddast proceeding of the settlement though the name of the plaintiff has been recorded yet the defendant no. 4 has been giving the threat of dispossession. The plaintiff thus claims to be having occupancy right over the suit land which according to him has not been affected by the vesting of intermediary interest. It is also stated that the provisions of the OLR Act has no application so far as the suit land is concerned and as such any such decision of the authority acting under the provision of said Act is illegal that too the same is also behind the back of the plaintiff. The suit land as per the record of 1930 settlement stands as ‘Nijjot Sthitiban’. 4. The defendant nos. 1 to 3 have raised the question of maintainability of the suit being hit under the provision of Section 67 of the OLR Act. It is stated that the demand register shows the name of defendant no. 4 who has paid the arrear dues from 1969-70 to 1979-80 and the OLR Case No. 63/80 is pending before the Tahasildar, Kanika when there remains scramble for possession. 5. The defendant no. 4 claims that the suit land having vested with the State free from all encumbrances, Abdul Halim had no right, title, interest or possession over it. The sale deed of plaintiff is said to be a nominal and sham one without consideration. Since, the defendant no. 5. The defendant no. 4 claims that the suit land having vested with the State free from all encumbrances, Abdul Halim had no right, title, interest or possession over it. The sale deed of plaintiff is said to be a nominal and sham one without consideration. Since, the defendant no. 4 stated to have been inducted as Bhag tenant by the mortgagee, is thus in possession and enjoyment of the land not only on the date of vesting but also thereafter and he having been duly recognized as occupancy tenant, has been settled with the same and thus has the rayati patta and as such is in possession of the suit land on his own right, title and having all the interest thereon. The possession of the suit land by the plaintiff is denied. 6. The trial court in view of above case and counter case framing six issues has rightly gone first to decide the three issues together concerning the right, title and interest over the suit land as claimed by the plaintiff with the determination of the legal force of the order in OLR Case No.63 of 1980 which is said to be against the plaintiff as well as the jurisdiction to declare that order as void since those are interrelated. 7. The trial court has ultimately decreed the suit on the following reasonings:- (i) that the defendant no.4 who is present appellant has been examined as D.W.6 and admitted that suit land pertaining to plot no. 804 under khata no. 323 measuring an area to the extent of A1.950 decl(P) of mouza-Bhamunda fell in his share vide T.S. no. 7. The trial court has ultimately decreed the suit on the following reasonings:- (i) that the defendant no.4 who is present appellant has been examined as D.W.6 and admitted that suit land pertaining to plot no. 804 under khata no. 323 measuring an area to the extent of A1.950 decl(P) of mouza-Bhamunda fell in his share vide T.S. no. 12/40; (ii) that although on that settlement rightly the status of suit land has been mentioned as Nijot, that it can not be decreed as Nijot since it has lost its character as such; (iii) that the O.E.A. collector order U/S 67 & 83 of the O.E.A. Act found the possession of present plaintiff in respect of the suit land on 24.4.50; (iv) that the cultivation and possession over the suit land by the plaintiff is believable; (v) that the Bhag tenancy of the plaintiff stands confirmed; (vi) that the plaintiff being in khas possession has to be declared as the occupancy raiyat in respect of the suit land; (vii) that the decision of the O.L.R. Act is ab initio void; (viii) that the Revenue Officer has no jurisdiction to entertain the application under OLR Act and the order is to be held as void. 8. The unsuccessful defendant no. 4 having filed the first appeal, the followings are the conclusions which have led it to confirm the judgment and decree of the trial court:- (i) that the appellant has never possessed the suit land after that was mortgaged to Halim on 9.2.53; (ii) that the decision of the OLR court vide their decision in OLR Case No. 63/80 being void ab initio is not to be upheld; (iii) that since Md. Halim did not depose in the trial court and in the absence of such examination, the other documentary and oral evidence has to be looked into in support of the claim of the parties; (iv) that the contention of the respondent that the status of the suit land as ‘Nijot’ stitiban in the ROR is to be so held; (v) that the Nijot lands are stitiban land; and (vi) that no proof is there for a case of adverse possession. 9. 9. Learned counsel for the appellant submits that in view of the availability of the scope under the special statute i.e. OLR Act to challenge the order passed under Section 4 of the Act by filing an appeal under Section 58 of the Act, the suit for the reliefs as laid by the plaintiff ought to have been held to be not maintainable and as such it was not permissible in the eye of law for the courts below to say that the order passed in the proceeding under Section 4 of the Act in favour of the defendant no. 4 is not binding by entering into the merit at their level. Although from the side of the appellant in this appeal of the year 1995, no substantial question/s of law had been precisely stated in the memorandum, yet during the hearing on admission the above submissions have been advanced reiterating two of the points separately given in writing before the hearing. 10. Learned counsel for the respondent no. 1 in his short reply contends that the courts below being well aware of said ground of attack to the maintainability have well addressed the same and according to him, there remains absolutely no legal flaw in that. The order in question having been held to be void ab initio when the petition under Section 4 of the Act was not at all entertainable in the eye of law as required, the courts below have rightly assumed the jurisdiction in decreeing the suit at the end. Thus he contends that no such substantial question of law surfaces in the case meriting admission of this appeal. 11. Admitted position stands that the suit land belonged to the defendant no. 4 who had it on partition in T.S. No. 12 of 1940 (Ext. 3) and that it was mortgaged to Sk. Halim on 9.5.1953 (Ext. 5). Next the original plaintiff claims to have been inducted as Bhag tenant by Sk. Halim whereas the defendant no. 4 claims to have not parted with the possession of the said land despite the mortgage. The order of the OLR Case No. 63 of 1980 has been admitted in evidence and marked as Ext.F. The petition having been entertained in the year 1980, the time period even as extended for the purpose had already expired since 19.5.1978. 4 claims to have not parted with the possession of the said land despite the mortgage. The order of the OLR Case No. 63 of 1980 has been admitted in evidence and marked as Ext.F. The petition having been entertained in the year 1980, the time period even as extended for the purpose had already expired since 19.5.1978. The foundational facts essential for such settlement under Section 4 (2) of the Act remain that the land must belong to the Govt.; the Revenue Officer concerned must have been empowered under the Act and that the application must be within the time as limited and prescribed. The lower appellate court having examined the matter has concluded that in the instant case none of those facts has been established. Thus the assumption of the jurisdiction to decide the application under Section 4 (2) of the Act in order to pass the order of leasing out the suit land in favour of the defendant no. 4 is wholly illegal and as such the final order in favour of the defendant no. 4 is clearly nonest being without jurisdiction whose invalidity as per the settled law can be set up in any legal proceeding wherever it is projected as the trump card without challenging it by carrying any appeal or revision in the higher forum as provided in the Act. More-so in the case, the order under Ext. F as it appears has been passed on 2.3.81 after receipt of notice from the plaintiff that too in utter disregard to the previous orders in OEA as well as OTR Collector and is thus in gross violation of the principles of natural justice and fair play without following the basic judicial procedure. 12. The above view being based on the correct position of law as enunciated the Full Bench decision of this Court in case of Manglu Jal and others vs. Bhagban Rai and others; AIR 1975 Orissa 219 and Paramananda Meher-vs. Rev. 12. The above view being based on the correct position of law as enunciated the Full Bench decision of this Court in case of Manglu Jal and others vs. Bhagban Rai and others; AIR 1975 Orissa 219 and Paramananda Meher-vs. Rev. Officer-Cum-Tahasildar, Bargarh; 52 (1981) CLT 533, the submission of learned counsel for the appellant fails and accordingly this Court refuses to admit this second appeal wherein the appellant seeks to set at naught the judgment and decree passed by the trial court as confirmed in the first appeal in finally decreeing the suit granting the reliefs as aforestated finding that there arises no substantial question of law for consideration so as to be answered. 13. Resultantly, the appeal stands dismissed. No order as to cost.