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2016 DIGILAW 769 (ORI)

Chapalabala Parija v. Tahasildar, Tirtol

2016-09-08

BISWANATH RATH

body2016
JUDGMENT BISWANATH RATH, J. - This writ application has been filed challenging the order dated 9.1.1995 passed by the Tahasildar, Tirtol, in O.L.R. Case No. 72/1986 in exercise of power under Section 9(1) of the O.L.R. Act, vide Annexure-1. 2.Short background involved in this case is that the disputed property under C.S. Khata No. 946, Plot No. 35 measuring Ac. 0.10 decs. And Plot No. 19 measuring Ac. 0.15 decs. (out of it Ac. 0.02 deca.) was originally recorded in the name of one Jagabandhu Mohanty, who by a registered sale deed in the year 1944 transferred the same in favour of his daughter, Sundaramani Dei along with other properties. After marriage of Sundaramani Dei, since she was staying away from the village, her mother, a widow was taking assistance of a family friend, Purna Chandra Swain, O.P.2 for dealing with the household property standing over the disputed plot. In 1972 Sundaramani Dei entered into an oral agreement for sale of the disputed land in favour of one Hari Sahu, an adjoining land owner. Taking advantage of the absence of Sundaramani Dei in the particular village, Purna Chadra Swain, O.P. 2 started paying rent for the disputed properties on behalf of Sundaramani Dei and rent receipts were issued indicating payment was being made by Purna Chandra Swain, O.P. 2. In the meantime, Sundaramani Dei died. Purna Chadra Swain and his brothers filed O.L.R. Case No. 72/1986 for declaration of theirs as raiyat over the disputed property taking recourse to Section 9(1) of the O.L.R. Act. Leaving apart other history available in the case, as not relevant for the purpose, this Court now proceeds to decide the issue involved in the case. The O.L.R. Case No. 72/1986 was disposed of on contest of the parties in favour of O.Ps. 2 & 3 holding that O.Ps. & 3 are able to establish their holding the disputed property with permission of the original owner and as such, they are entitled to be declared as raiyat. 3.Challenging the order passed in O.L.R. Case No. 72/1986, vide Annexure-1, Sri Mohanty, learned counsel for the petitioners, contended that not only there is no whisper in the O.L.R. Case No. 72/1986 with regard to the fact that O.Ps. 3.Challenging the order passed in O.L.R. Case No. 72/1986, vide Annexure-1, Sri Mohanty, learned counsel for the petitioners, contended that not only there is no whisper in the O.L.R. Case No. 72/1986 with regard to the fact that O.Ps. 2 & 3 are raiyats/tenants in the village but there is also no material even forthcoming in spite of a report being called for during pendency of the proceeding to throw any light in establishing the case in favour of O.Ps. 2 & 3 that they are either tenants or rayats in respect of any agricultural property in the particular village so as to get the benefit of the provision of Section 9(1) of the O.L.R. Act. Sri Mohanty further contended that in absence of satisfying ingredients of the Section 9(1) of the O.L.R. Act, the trial Court passing the impugned order solely relying upon the materials available on record to establish that O.Ps. 2 & 3 were merely possessing the disputed property with permission makes the impugned order invalid and it is in these premises and after drawing the attention of this Court to several observations of the Court below, Sri Mohanty, learned counsel for the petitioner prayed for setting aside the impugned order, vide Annexure-1. 4.Mr. Dash, learned Additional standing Counsel appearing for O.P.1, has not disputed the stand taken by the learned counsel for the petitioner rather fairly supported the stand of the learned counsel for the petitioners on the footing that the same had the support of law. 5.There is no appearance on behalf of the contesting opposite parties at the time of hearing in spite of there being appearance of a set of Counsel on behalf of O.Ps. 2& 3. 6.Having considered the contentions of the appearing parties, after going through the pleadings of the respective parties available all through and the facts narrated in the impugned order, this Court finds that the entire case of O.Ps. 2 & 3 in the Court below is based on un-disputed fact that at some point of time, the house standing over the disputed property was being allowed by the original owner for being occupied by O.Ps. 2 & 3. The report called for by the Court below during pendency of the original case also found to be restricted only on the aspect of possession of the house site over the disputed land by O.Ps. 2 & 3. 2 & 3. The report called for by the Court below during pendency of the original case also found to be restricted only on the aspect of possession of the house site over the disputed land by O.Ps. 2 & 3. 7.Section 9(1) of the O.L.R. Act reads as follows: “9. Dwelling houses of raiyats and tenants- (1) Every person who is a raiyat or a tenant in respect of any land but has no permanent and heritable rights in respect of any site on which his dwelling house or farm house stands, shall with effect from the commencement of this Act be deemed to be a raiyat in respect of the whole of such site or a portion thereof not exceeding one-fifth of an acre whichever is less if he or his predecessor-in- interest has (a) obtained permission, express or implied, from the person having permanent and heritable rights in the site and having right to accord permission for the construction of such house; and (b) built such house at his own expense.” Looking at the provisions contained in Section 9(1) of the O.L.R. Act it makes it clear that a person before claiming to be a raiyat or tenant must establish that he is first of all a raiyat or tenant in respect of any land and that he has no permanent or heritable right in respect of any site, on which his dwelling house or farm house stands. This being the requirement of the statute and in absence of the pleadings and the findings in respect of O.Ps. 2 & 3, insofar as they were the raiyats or tenants in respect of any land, this Court finds that the trial Court has failed in appreciating the mandatory requirement of Section 9(1) of the O.L.R. Act and has passed the final order in the O.L.R. proceeding solely based on materials available establishing that O.Ps. 2 & 3 are the residents being permitted over the dwelling house situated over the disputed property. The mandatory requirement of Section 9(1) of the O.L.R. Act being not satisfied, this Court finds the impugned order is bad in law. 8.Above aspect has also got the taste of law in a writ petition being W.P.(C) No. 9509/2004 and in deciding such question, a single Bench of this Court in the case of Sakuntala Sahoo & Others vrs. The mandatory requirement of Section 9(1) of the O.L.R. Act being not satisfied, this Court finds the impugned order is bad in law. 8.Above aspect has also got the taste of law in a writ petition being W.P.(C) No. 9509/2004 and in deciding such question, a single Bench of this Court in the case of Sakuntala Sahoo & Others vrs. State of Orissa & Others reported in 2005 (II) OLR-449 came to hold that the relief claimed in Section 9(1) proceeding cannot be granted unless one satisfies the ingredients set in Section 9(1) of the O.L.R. Act. This Court has been informed that the finding in respect of refusal of grant of such relief on failure of the satisfaction of ingredients of Section 9(1) of the O.L.R. Act as bad has not been disturbed by the division Bench even though the decision in Sakuntala Sahoo was tested in the writ appeal in this Court itself. Be that as it may, following the observations made in the aforesaid decision and looking to the failure of O.Ps. 2 & 3 in satisfying the ingredients of Section 9(1) of the O.L.R. Act, this Court finds that the impugned order under Annexure-1 not sustainable in the eye of law. Therefore, while allowing the writ application, this Court sets aside the impugned order under Annexure-1. The writ petition succeeds. Parties to bear their own cost. Petition succeeds.