Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1036 (ORI)

State of Orissa v. Sashibhushan Tripathy

2017-09-13

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Defendants are the appellants in a reversing judgment. 2. The suit property comprises of an area of Ac.7.35 dec. under survey no.2/1 situated in village-Kharida. 3. Kandhuni Tripathy, predecessor-in-interest of the plaintiffs, instituted T.S No.29 of 1985 in the court of the learned Subordinate Judge, Aska for declaration of occupancy right. The case of the plaintiff is that suit property belongs to Ex-Zamindar of Dharakote estate in the district of Ganjam. Kora Prasad Panda, her brother, was in possession of the suit property for more than thirty years. He used to pay rent to the Ex-Zamindar. After death of Ex-Zamindar, the estate came under the management and control of the Manager appointed by the Court of Wards, Madras Presidency. The Manager granted a patta to Kora Prasad recognizing him as the occupancy raiyat in respect of four cents out of suit property, though he was in possession of the entire suit property. Kora Prasad sold four cents to her by means of registered sale deed in the year 1952, but delivered possession in respect of entire suit property. After purchase, she remained in possession over the suit property openly, peacefully and with hostile animus to the defendants and as such, perfected title by way of adverse possession. In the year 1954, Dharakote estate vested in the State free from all encumbrances. The suit property was recorded as “Bano Poramboke” in the sabik ROR. After vesting, the Tahasildar initiated a proceeding under Sec. 7 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to “the OPLE Act”) against her. The Tahasildar came to hold that the suit land being “Bano Poramboke” and communal in character, no patta could be granted by the Manager. Accordingly eviction order was passed against the plaintiff. 4. Defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the patta granted to Kora Prasad in respect of the suit property is not valid as the same is described as “Bano Paramboke”. The Manager of Courts of Wards was not competent to grant patta in favour of Kora Prasad without changing the classification thereof. The vendor of the plaintiff had not paid the rent to the State. He was also not in possession of the suit land. The Manager of Courts of Wards was not competent to grant patta in favour of Kora Prasad without changing the classification thereof. The vendor of the plaintiff had not paid the rent to the State. He was also not in possession of the suit land. It was further pleaded that the defendants had no knowledge about the execution of sale deed by Kora Prasad in respect of the suit land. Tahasildar, Aska, after coming to know about the illegal possession of the suit land by the plaintiff, started encroachment case. The vendor of the plaintiff was not in possession of the suit land for more than the statutory period and as such, she had not acquired any title by adverse possession. It is apt to state here that during pendency of the suit, the sole plaintiff died, whereafter her legal heirs have been substituted. 5. On the inter se pleadings of the parties, learned trial court has framed nine issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. Learned trial court came to hold that the patta vide Ext.1 granted by the Manager is not valid as it is hit by the provision of Sec. 2(c) of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act 1 of 1948). Neither plaintiff nor her vendor has any right, title or possession over the suit land. The suit land is a communal land. The plaintiff has paid penalty in the encroachment proceeding from 1969 till 1979. Having admitted title of the State, no plea of adverse possession can be upheld. Held so, it dismissed the suit. Felt aggrieved, the plaintiffs filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 2nd Addl. District Judge, Berhampur and renumbered as Title Appeal No. 19/22 of 1992/1991-GDC. Learned lower appellate court came to hold that the patta vide Ext.1 having been granted prior to coming into force of Orissa Act 1 of 1948, the said Act is not applicable to the present case. Thus Ext.1 is a valid document. The plaintiff has acquired valid title by way of adverse possession. The plaintiff has also acquired occupancy right over the suit land. Held so, it allowed the appeal. Thus Ext.1 is a valid document. The plaintiff has acquired valid title by way of adverse possession. The plaintiff has also acquired occupancy right over the suit land. Held so, it allowed the appeal. It is apt to state here that during pendency of the second appeal, appellant no.2 died, whereafter his legal representatives have been brought on record. 6. The second appeal was admitted on Ground Nos.1, 3, 5 and 7 enumerated in the appeal memo. The same are – “1. Whether the suit is hit by Section 16 of the OPLE Act? 2. Whether the suit land is governed by the Act 1 of 1943? 5. Whether the suit land being recorded as Bano Paramboke is of communal character and whether the ex-zamindar had authority to issue patta in respect of suit land? 7. Whether in view of the disputed recorded the status of the land the entry of the ROR has a presumative value?” 7. Heard Ms. Samapika Mishra, learned Addl. Standing Counsel. None appears for the respondents. 8. Ms. Mishra, learned Addl. Standing Counsel submitted that the land in question has been recorded as “Bano Paromboke” in the sabik ROR. The suit land is situated in the district of Ganjam. The word ‘Poramboke’ has not been defined in the Madras Land Estate Act. The word ‘Poramboke’ has been defined in Sec. 4 of the Kerala Land Conservancy Act, 1957. ‘Poramboke’ means unassessed lands which are the property of Government used or reserved for public purposes or for the communal use of villagers. The suit schedule land is communal in nature and cannot be leased out in favour of the parties by the intermediary. The estate vested in the State after promulgation of the Orissa Estate Abolition Act. The vendor of the plaintiff had claimed that he was the occupancy raiyat of the suit land and had acquired title by way of adverse possession. Referring to Sec. 3(15) and (16) of the Madras Estate Land Act, 1908, she submitted that there is no pleading or evidence that the plaintiff was in cultivating possession over the suit land for more than twelve years. Thus mere possession of the land for howsoever long period will not confer rights of an occupancy raiyat on either the vendor of the plaintiff or the plaintiff. Therefore the findings of the learned lower appellate court are perverse. Thus mere possession of the land for howsoever long period will not confer rights of an occupancy raiyat on either the vendor of the plaintiff or the plaintiff. Therefore the findings of the learned lower appellate court are perverse. She further submitted that the learned trial court came to hold that the plaintiff had paid penalty to the State from the year 1969 to 1979 in Encroachment Case No. 7838 of 1969 thereby admitting the title of the State. Therefore, the plea of adverse possession cannot be sustained. The findings of the learned lower appellate court are perverse. The plea of occupancy raiyat and adverse possession is mutually destructive. She further submitted that the findings of the learned lower appellate court that the Orissa Act 1 of 1948 is not applicable is completely non application of mind on the ground that Ext.2 was executed after the promulgation of the said Act. Sec. 3 of the Act prohibits sale of forest land without permission of the Collector. Ext.2 was executed in favour of the plaintiff in the year 1952 without obtaining permission from the Collector and as such, the same is not a valid sale in the eye of law. She further submitted that P.W.1 in his cross-examination has admitted that the Raja of Dharakote used to affix his official seal on all documents given by his hand and that the Raja of Dharakote had issued the patta to him. This contradicts the pleading that the patta had been issued by the Manager appointed by the Court of Wards inasmuch as the document vide Ext.1 contains the signature of L.M Patnaik. The plaintiff has not examined the signatory of the document as a witness. No seal of either Raja of Dharakote or the Court of Wards found place on the document. The document in no way assists the plaintiff. No order of the Court of Wards or any such authorization has been produced by the plaintiff to show that Manager was authorised to grant patta. Thus Ext.1 is not a valid document. Further, Ext.1 is an unregistered deed of lease. She relied on the decisions of this Court in the case of Purna Chandra Naik v. State of Orissa (S.A No. 109 of 2001 disposed of on 11.8.2017) and Brahmananda Jena (since dead) through L.Rs. v. State of Orissa and another (S.A No. 208 of 1999 disposed of on 19.5.2017). 9. Further, Ext.1 is an unregistered deed of lease. She relied on the decisions of this Court in the case of Purna Chandra Naik v. State of Orissa (S.A No. 109 of 2001 disposed of on 11.8.2017) and Brahmananda Jena (since dead) through L.Rs. v. State of Orissa and another (S.A No. 208 of 1999 disposed of on 19.5.2017). 9. Encroachment Case No. 7838 of 1969 was initiated against the plaintiff. Ext.5 series reveal that the plaintiff has paid penalty from year to year beginning from 1969 to 1979. Thus the question does arise as to whether the suit for declaration that the plaintiff is a occupancy raiyat is maintainable ? 10. The subject-matter of dispute is no more res integra. In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose that whether the decision of the Revenue Officer in the proceeding under the OPLE Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the OPLE Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. 11. In view of the above, notwithstanding the bar contained in Sec. 16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title. 12. The plaintiff asserts that the Manager of the Court of Wards of Dharakote estate granted raiyat patta in favour of Kora Prasad (P.W.1). The suit land has been recorded as “Bano Poramboke” in the record-of-right published in the year 1938-41 ROR. The Madras Court of Wards Act, 1902 was enacted to consolidate and amend the law relating to Court of Wards in the Madras Presidency. The words “Madras Presidency” was substituted by the words “Tamil Nadu Adaptation of Laws Order, 1970”. The estate of Dharakote was under Madras Presidency. The Madras Court of Wards Act, 1902 was enacted to consolidate and amend the law relating to Court of Wards in the Madras Presidency. The words “Madras Presidency” was substituted by the words “Tamil Nadu Adaptation of Laws Order, 1970”. The estate of Dharakote was under Madras Presidency. Sec. 28 of the Court of Wards Act provides that every manager appointed by the Court shall have power, subject to the control of the Court, to collect the rents of land placed under his charge, as well as all other money due to the ward, and to grant receipts therefor, and may under the orders of the Court, grant or renew such leases as may in his opinion be necessary for the good management of the property, and do all such lawful acts as he may be generally or specially authorized by the Court to do for the good management of the property. 13. On a bare perusal of the said section, it is clear that the Manager appointed by the Court shall have power to collect rents of land placed under his charge, money due to the ward, and grant receipts therefor and may under the orders of the Court grant or renew such leases as may in his opinion be necessary for the good management of the property and do all such lawful acts as he may be generally or specially authorised by the Court to do for the good management of the property. There is no pleading or evidence on record that the Manager of the Court of Wards granted patta under the order of the Court. 14. Way back in the year 1936, a five Judge Bench of the Privy Council in the case of Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253 (2) held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The said proposition of law is based on a legal maxim “Expressio unius est exclusio alterius”, which means “The express mention of one thing implies the exclusion of another”. 15. The Manager of the Court of Wards de hors his jurisdiction in issuing patta. The minor is not bound by any action of the Manager. The said proposition of law is based on a legal maxim “Expressio unius est exclusio alterius”, which means “The express mention of one thing implies the exclusion of another”. 15. The Manager of the Court of Wards de hors his jurisdiction in issuing patta. The minor is not bound by any action of the Manager. Further, on a scrutiny of the so-called patta granted by the Manager of the Court of Wards vide Ext.1 it is found that the seal of the estate had not been affixed. The same is an unstamped document. 16. In Ram Nath Mandal and others v. Jojan Mandal and others, AIR 1964 Patna 1, the Full Bench of Patna held that under Sec. 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Sec. 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Sec. 49 of the Registration Act and other evidence of its terms will be precluded under Sec. 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint. 17. In view of the authoritative pronouncement of the Full Bench of Patna High Court in the case of Ram Nath Mandal (supra) Ext.1 requires registration. The learned lower appellate fell into patent error in placing reliance on the said document. Thus the irresistible conclusion is that Kora Prasad was not the owner of the suit property. Any alienation made by him in favour of the plaintiff is void. 18. The plaintiff asserts that she was in possession of the suit land for more than twelve years and became the raiyat under Sec. 3(15) and (16) of the Madras Estate Land Act, 1908. Sec. 3(15) and (16) of the Madras Estate Land Act, 1908, which are relevant, are quoted below: “3. 18. The plaintiff asserts that she was in possession of the suit land for more than twelve years and became the raiyat under Sec. 3(15) and (16) of the Madras Estate Land Act, 1908. Sec. 3(15) and (16) of the Madras Estate Land Act, 1908, which are relevant, are quoted below: “3. Definitions – xxx xxx xxx (15) "Ryot" means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. Explanation. -A person who has occupied ryoti land for a continuous period of twelve years shall be deemed to be a ryot for all the purposes of this Act. (16) "Ryoti land" means cultivable land in an estate other than private land but does not include - (a) beds and bunds of tanks and of supply, drainage surplus or irrigation channels; (b) threshing-floor, cattle-stands, village-sites, and other lands situated in any estate when are set apart for the common use of the villagers; (c) lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.” 19. There is no pleading or evidence on record that the plaintiff was not cultivating over the suit land for more than twelve years. The plaintiff was an encroacher. In encroachment case, she paid penalty. 20. The estate vested in the State free from all encumbrances after coming into force of the Orissa Estate Abolition Act. The plaintiff very well known that the State of Orissa is the paramount owner of the land in question, since she paid the penalty in encroachment proceeding. The substantial questions of law are answered accordingly. 21. In the result, the suit must fail. The appeal is allowed but in the circumstances there shall be no order as to costs.