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2016 DIGILAW 931 (ORI)

Pramod Kumar Biswal v. Nimain Charan Mantri

2016-10-07

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Addl. District Judge, FTC IV, Cuttack in RFA No. 128 of 2003 confirming the judgment and decree passed by the learned Civil Judge (Jr.Divn.), 2nd Court, Cuttack in T.S 173/01 (196/87). The appellants as the plaintiffs filed the above noted suit against the respondent-defendants for declaration of their right, title, interest and possession over the suit property better described in schedule appended to the plaint with further reliefs of cancellation of orders passed by the Consolidation Officer, Deputy Director, Commissioner, Consolidation as null and void being without jurisdiction. The suit having been dismissed, these appellants being the unsuccessful plaintiffs have carried an appeal under Section 96 of the Code of Civil Procedure. The lower appellate court having declined to set aside the findings of the trial court as also the order of dismissal of the suit, the present second appeal has been filed 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 arraigned in the trial court. 3. The plaintiffs’ case is that the suit land which in total measures Ac.0.89 decimals comprising of 13 plots form part of the land recorded under Sabik Plot No. 249/5 of Mouza Bamburi in total measuring Ac.1.04.05 links which was originally recorded in the name of husband of one Chanchali Bewa who happens to be the mother of original defendant nos. 1 and 2 in the settlement of the year 1930. Said husband of Chanchali Bewa was the owner in possession of the suit land being a tenant under Sidheswarpur Estate. Since Chanchali Bewa did not pay the rent, the landlord of the Estate had filed a rent suit against her and had obtained a decree for realization of arrear rent. The rent being not deposited, in Execution Case No. 104 of 1960-61, the total lands measuring Ac.1.04 decimals under possession of Chanchali Bewa were put to auction by the Revenue Court by observing all formalities. It is said that one Pravakar Khuntia purchased the same being the highest bidder in the said auction and accordingly had taken delivery of possession of the suit land through court and as such remained in possession as its owner. It is said that one Pravakar Khuntia purchased the same being the highest bidder in the said auction and accordingly had taken delivery of possession of the suit land through court and as such remained in possession as its owner. It is next stated that on 6.10.1961 said Pravakar for legal necessity had sold the land to one Maheswar Naik for consideration of Rs.170/-by executing a registered sale deed followed by delivery of possession of the said land. This Chanchali then being instigated by her co-villagers filed a petition in the Execution Case to declare the said auction sale null and void resorting to provision of Order 29 Rule 90 of the Code of Civil Procedure. The petition stood dismissed. It was challenged before the ADM, Cuttack in Revision Case No. 13 of 1968 and then also further challenged which went in vain. The plaintiffs claim to have purchased the said land from said Maheswar Naik on 1.7.1968 and being delivered with the possession of the said lands have continued to remain in possession having the right, title and interest by going on paying the rent etc. It is further stated that Chanchali Bewa in another Revision Case No. 7 of 1971 somehow got a favourable order of the remand of the matter to the Revenue Court but by that time the Revenue Court being abolished, Tahasildar, Cuttack had been empowered to adjudicate the matter cognizable by the Revenue Court. As no further step was taken in the said case, the matter did not proceed and finally Chanchali Bewa died in the year 1974. Thereafter, when consolidation operation began, the daughters of Chanchali Bewa filed Consolidation Cases. Though all the materials including the record of rights in the name of the plaintiffs as well as their vendor and the rent receipts were placed in support of continuous possession of the plaintiffs over the suit land for more than 12 years, the Consolidation Officer directed for recording of land measuring Ac.0.77 decimals out of Ac.1.04.05 links in favour of the defendants. The plaintiffs then carried an appeal before the Deputy Director, Consolidation. The appellate authority confirmed the said order of the consolidation officer. It was thereafter challenged in carrying Consolidation Revision No. 2622 of 1983 before the Commissioner Consolidation which did not yield any fruitful result. The plaintiffs then carried an appeal before the Deputy Director, Consolidation. The appellate authority confirmed the said order of the consolidation officer. It was thereafter challenged in carrying Consolidation Revision No. 2622 of 1983 before the Commissioner Consolidation which did not yield any fruitful result. All these orders passed by the consolidation authorities are now attacked as illegal and without jurisdiction. Therefore, the suit has been filed claiming reliefs as aforestated. 4. The defendants in the written statement while traversing the plaint averments questioned the maintainability of the suit being barred by principles of res judicata, estoppel and acquiescence. It is stated that the plaintiffs have no cause of action to file the suit which is barred under the provision of section 51 read with Section 4 (4) of the OCH & PFL Act. The defendants further asserted that the land measuring an area Ac.1.04 decimals covered under Sabik Khata No. 249/5 is their ancestral property and stood recorded in the name of their father Binod Pradhan. It is further stated that though there were series of illegal paper transactions in respect of the said property in question, fact has remained that the father of the defendants and after him their mother and then they have been in possession of the suit property peacefully without any interruption from any quarter and as such they have the right and possession over the same which has been rightly declared by the consolidation authorities. It is their case that the land in question has been illegally put to auction in Execution Case No. 105 of 1964. In appeal the order of the Collector was set aside and she was asked to pay the decreetal dues. Thereafter, wife of Maheswar Naik having filed Revision Case No. 7/1971 before the RDC, Central Division, Cuttack, the matter had been remanded with a direction to initiate a proceeding afresh giving reasonable opportunity to Chanchali Bewa in accordance with the provision of Rule 22 of Order 21 of the Code. So it is said that when both the appellate as well as the revisional authorities under the O.T. Act set aside the auction sale of the property in question, neither the said auction purchaser nor the subsequent transferees including the present plaintiffs had ever derived any right, title and interest over the suit land on that basis. So it is said that when both the appellate as well as the revisional authorities under the O.T. Act set aside the auction sale of the property in question, neither the said auction purchaser nor the subsequent transferees including the present plaintiffs had ever derived any right, title and interest over the suit land on that basis. It is further contended that pursuant to the notification under Section 3 of the OCH & PFL Act in the year 1978, the matter was agitated before the authorities under the Act and after contest and hearing, the claim of the defendants has been finally allowed. The defendants had also moved the Deputy Director, Consolidation for rectification of the order of the note of illegal possession and that has been allowed holding the plaintiffs to be having no right, title, interest and possession over the suit property. The plaintiffs having challenged these orders by filing the writ petition vide OJC No. 3269/1986, it was not so interfered with by the High Court with the observation that it would be open for challenge in revision before the Commissioner. So the plaintiffs had filed the revision. However, during pendency of the revision, the suit has come to be filed. The defendants have asserted their right, title, interest and possession over the suit property and as such to have been rightly declared by the consolidation authority. With all these, they prayed for dismissal of the suit. 5. The trial court faced with above rival pleadings framed seven issues. First going to answer issue no. 4 relating to the challenge to the orders of the consolidation authorities as illegal and without jurisdiction, the finding has been that there cannot be any such declaration in the suit. With all these, they prayed for dismissal of the suit. 5. The trial court faced with above rival pleadings framed seven issues. First going to answer issue no. 4 relating to the challenge to the orders of the consolidation authorities as illegal and without jurisdiction, the finding has been that there cannot be any such declaration in the suit. Next going to decide the right, title, interest and possession of the plaintiffs as also the suit being barred under the provision of sections 4(4) and 51 of the OCH & PFL Act affecting the maintainability of the suit, the answer has been recorded after discussion of the rival pleadings and the provisions of law that the court has no jurisdiction to declare the right, title and interest of the plaintiffs over the suit property either on the basis of their claim of purchase or to have been so acquired by adverse possession holding that the provision of OCH & PFL Act as referred to above stands as clear bar for the suit. 6. The lower appellate court being moved as is seen has sat over to examine the correctness of the above findings. However, upon consideration of the rival pleadings and on going through the evidence on record as well as viewing the provisions of law governing the subject, the lower appellate court has finally dismissed the appeal declining to interfere with the order of dismissal of the suit. 7. In the absence of any substantial question of law being either stated in the memorandum of appeal or separately thereafter, the learned counsel for the appellants contends that the courts below have misinterpreted the provisions of the OCH & PFL Act in arriving at a conclusion that the order of Commissioner, Consolidation which has marched over the orders of the authorities below is final and binding and therefore not questionable in the Civil Court being oblivions of the position that Civil Court has wide power to interfere with the same in case those are without jurisdiction and thus nullity. For the purpose, he has strenuously relied upon the Full Bench decision of this Court in Sundarmani Bewa & another vs. Dasarath Parida (dead) and after him Labanya Dei and others reported in 65 (1988) CLT 440 (FB). For the purpose, he has strenuously relied upon the Full Bench decision of this Court in Sundarmani Bewa & another vs. Dasarath Parida (dead) and after him Labanya Dei and others reported in 65 (1988) CLT 440 (FB). Banking upon the ratio of the same, he contends that the courts below have not examined the case in hand in the touch stone of the same. Thus he contends that the above stands as the substantial question of law for certification for the purpose of admission of this appeal. 8. Fact as it remains in the present case is that in the consolidation operation finally by the orders of the authorities created under the said statue at different level, the claim of the defendants has been accepted and as such the land records have been prepared. In the suit those orders have been called in question as illegal being without jurisdiction. The claim of the right, title and interest over the suit property by the plaintiffs would thus only stand for further consideration and as such recommendation, only in the event it is held that said orders of the consolidation authorities are null and void. The points formulated in the above noted case decided by the Full Bench were the followings:- (a) Whether the consolidation authorities are competent to exercise their jurisdiction in respect of lands, which are not consolidable under the Act; (b) Whether jurisdiction of the Civil Court is ousted in respect of non-consolidable lands during continuance of the consolidation operations in the area; and (c) Whether the authorities under the Act have power to record forcible possession of a person in the Land Records while showing another person as the holder of title to the land. 9. In the said case, proceeding with a close and careful scrutiny of the scheme of the Act, its intent and purpose and then interpretating of the relevant provisions of the Act, it has been held that before holding that the jurisdiction of the Civil Court to entertain a suit is ousted under the provisions of the Act, two essential ingredients are to be found. Those are whether that the suit property is included in the consolidation scheme and the relief sought in the suit can be granted by the authorities under the Act. Those are whether that the suit property is included in the consolidation scheme and the relief sought in the suit can be granted by the authorities under the Act. If any of these conditions is not satisfied in a case, then the suit will abate under section 4(4) or section 51 of the Act. 10. Learned counsel for the appellants contends with vehemence that the consolidation authorities had no power to declare the right, title and interest of party/parties as to have been acquired over the land by adverse possession. He therefore contends that the orders are without jurisdiction. He lastly contends that the courts below have completely erred in law by holding the suit for the reliefs as claimed as not maintainable. 11. In the very Full Bench decision of this Court cited by the learned counsel for the appellants, the point arose for consideration as to whether the authorities under the Act have the power to record in the Land Register, the forcible possession of land with one person while recording title with other. In this matter, the followings are the discussion and conclusion:- “There is no controversy that such power is not vested by any express provision in the Act. A contention is raised that possession is a relevant consideration for determination of the question of title to property and since the authorities under the Act are vested with the power to enquiry into and determine the question of title and interest to land within the notified area, they are therefore impliedly vested with the power to enquire into the question of possession of property and if actual physical possession of the property though unauthorised is found with a person and such person has not perfected his title by adverse possession then the fact of his possession ought to find place in the record prepared by the authority. On giving my anxious consideration to it, I am unable to accept his contention. The authorities under the Act are vested with the power to enquire into the question of title and interest to considerable lands lying within the notified area. There is no doubt that possession is an important factor in the matter of determination of title to the land and for that purpose need to be considered. The authorities under the Act are vested with the power to enquire into the question of title and interest to considerable lands lying within the notified area. There is no doubt that possession is an important factor in the matter of determination of title to the land and for that purpose need to be considered. In many cases possession may form the basis of acquisition of title by a party, for example, where the party claims to have perfected his title to the property by adverse possession. But in a case the possession of the property through adverse falls short of the requisite period for acquisition of title, the enquiry relating to possession is of no avail. It will be a futile exercise. If the authority finds that the person in forcible possession of the property has perfected title to it by continuing in such possession for requisite statutory period, then he is entitled to be recorded as having title to the property and the name of the true owner is not to be recorded since he has lost his title to it. It has been brought to our notice by the learned counsel for the parties that the authorities under the Act are often making such entries in the records. Such action by the authorities presumably is under the impression that as in the case with settlement authorities forcible possession by a party who has not perfected his title to the property by adverse possession ought to be reflected in the records. The basic difference between enquiry by the settlement authorities and that by the authorities under the Act is that while the former is to prepare the record on the basis of actual physical possession of the property the latter is required to determine the question of interest and title to the property. Therefore, recording title to the property with one person and possession with another does not serve the intent and purpose of the Act and therefore ought not to be undertaken by t he authorities under the Act. Observations supporting this view have been made in a Division Bench decision of this Court in the case of Bhagirathi Kar and another V. Jagannath Roul and others. Observations supporting this view have been made in a Division Bench decision of this Court in the case of Bhagirathi Kar and another V. Jagannath Roul and others. On the analysis presented above, my answer to the point is that the authorities under the Act are not vested with the power to record forcible possession with a party other than the person recorded as the owner of the land while preparing land records.” Upon close and careful reading of the above, in my considered view rather goes to negate the contention of the learned counsel for the appellants. It has been clearly stated that the authorities under the Act are vested with the power to enquire into the question of title and interest to consolidable lands lying within the notified area so far as determination of title to the land and for that purpose undoubtedly the possession being an important factor has to be found out. It has been said that in some cases the possession may form the basis of acquisition of title by a party and the example has been given that such becomes the case where the party claims to have perfected his title to the property by adverse possession. However, it has been held that in a case the possession of the property though adverse falls short of the requisite period for acquisition of title, the enquiry relating to possession is of no avail and it would be futile exercise. It has been clearly held that if the authority finds that the person in forcible possession of the property has proved title to it by continuing in such possession for requisite statutory period, then he is entitled to be recorded as having the title to the property and the name of the true owner is not to be recorded since he has lost the title to it. So the authoritative pronouncement of the Full Bench of this Court is that the consolidation authorities under the Act can very well record the land in favour of the person in possession who has by that acquired title over the land subject to of course by satisfying all other legal requirements favouring applicability of the said doctrine of adverse possession. So the authoritative pronouncement of the Full Bench of this Court is that the consolidation authorities under the Act can very well record the land in favour of the person in possession who has by that acquired title over the land subject to of course by satisfying all other legal requirements favouring applicability of the said doctrine of adverse possession. When it has been brought to the notice of the Court that the authorities under the Act are often making note of forcible in the records, it has been said that such action of the authorities are presumably under the impression that it is being so done as in the case of the settlement authorities noting forcible possession by a party who has not perfected his title to the property by adverse possession. The Court has clearly stated the difference between enquiry by the settlement authority and that by the consolidation authorities that where the former is to prepare the record on the basis of actual physical possession of the property the latter is required to determine the question of interest and title to the property. In that view of the matter it has been further made clear that recording of title to the property with one person and possession with another by the consolidation authorities does not serve the intent and purpose of the Act and therefore, the authorities have been cautioned not to undertake the said exercise. The answer has been that the authorities under the Act are not vested with the power to record forcible possession with a party other than the person recorded as the owner of the land while preparing the land records. Ratio of this decision is not at all favouring the contention of the learned counsel for the appellants that the consolidation authorities have no power to prepare the land records in favour of a person by holding him to have perfected title over the land in question by way of adverse possession. Therefore, the same stands repelled. Thus, this Court is unable to accept the submission of the learned counsel for the appellants that there arises any substantial question of law in this case so as to be certified for the purpose of admission of this appeal. Accordingly, it held that the appeal does not merit admission. 12. In the result, the appeal stands dismissed. No order as to cost.