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2017 DIGILAW 1040 (ORI)

Pradyumna Keshari Mohapatra v. State of Orissa

2017-09-13

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is plaintiff’s appeal against a confirming judgment in a suit for declaration of right, title and interest, confirmation of possession, in the alternative for recovery of possession, if it is found that the plaintiff has been dispossessed from the suit land and permanent injunction. 2. The subject-matter of dispute is a tank and its ridge having an area of Ac.12.94 dec. described in Lot Nos.1 and 2 of the schedule of the plaint. 3. The case of the plaintiff is that the tank was under the occupation of the ex-intermediaries. Chaudhurani Nakphudi Dei, one of the co-sharers, had 1/7th share. She had executed a deed of relinquishment in favour of her grand sons Nanda Kishore Biswal and Gobinda Kishore Biswal. Partition Case No. 26 of 1928-29 was filed under the Estates Partition Act, 1897 before the Deputy Collector, Balasore. The said Touzi was partitioned by the Deputy Collector, Balasore between the co-sharer ex-intermediaries. On 4.5.1931, the Deputy Collector, Balasore allotted the entire Touzi No. 811 among the ex-intermediaries in separate Touzis. The suit land was allotted to Nanda and Gobinda. Thus they became the owners of the suit properties. They were in possession of the same. They used to pay rent till the estate vested in the State. At the time of vesting of the estate, they filed return before the Collector, Balasore in their names. The tenancy ledger was opened in favour of Nanda. He was raiyat under the State. But then, tenancy ledger was subsequently cancelled without affording opportunity of hearing to him. In the major settlement, parcha was issued in favour of Nanda in respect of a part of the area. Nanda filed an application before the Tahasildar, Sadar, Balasore for realisation of rent. The said application was registered as R.F Case No.807 of 1980. Notice was issued to the general public inviting objection. The R.I was directed to furnish report. The R.I submitted report stating that on 9.8.1960 the suit properties had been transferred by the Tahasildar, Sadar, Balasore to Nizampur Gram Panchayat. The G.P had not leased out the property since its transfer. The suit tank was under the possession of Nanda. He was rearing fish. No objection was received from the general public. The Addl. Tahasildar, Sadar, Balasore held that there was no provision for acceptance of petition from the ex-intermediaries for lease of the land after 31.12.1976. The G.P had not leased out the property since its transfer. The suit tank was under the possession of Nanda. He was rearing fish. No objection was received from the general public. The Addl. Tahasildar, Sadar, Balasore held that there was no provision for acceptance of petition from the ex-intermediaries for lease of the land after 31.12.1976. He converted the said petition to Suo Motu R.F Case No.807 of 1980. He rejected the case on 16.11.1980 holding that the suit tank was transferred to Nizampur Gram Panchayat by the Tahasildar, Sadar, Balasore. Against the said order, Nanda filed RF Appeal Case No.52 of 1981 before the Sub-Divisional Officer, Sadar, Balasore. In spite of the order of stay, the Sarapanch, Nizampur Gram Panchayat leased out the tank in favour of one Ashok Kumar Jena. The appeal was dismissed on 31.3.1983. Thereafter, Nanda filed R.F Revision Case No.1 of 1983 before the Addl. District Magistrate, Balasore. During pendency of the revision, Nizampur Gram Panchayat was bifurcated into two Gram Panchayats, namely, Nizampur Gram Panchayat and Chasakhand Gram Panchayat. The suit tank is in possession of Chasakhand Gram Panchayat. While the matter stood thus, Nanda and Gobinda alienated the suit tank in favour of the plaintiff by means of registered sale deeds dated 1.12.1981, 19.12.1981 and 26.12.1981 for a valid consideration and delivered possession to the plaintiff. Thereafter, plaintiff became the absolute owner of the suit tank. The plaintiff is in possession of the suit tank openly, peacefully and with hostile animus to the defendants and as such, perfected title by way of adverse possession. But then, in the major settlement, the suit land has been wrongly recorded under Rakhit Khata. Finally, by order dated 30.11.1992, the revisional court dismissed the suit. With this factual scenario, the plaintiff instituted the suit seeking reliefs mentioned supra. 4. Defendant No.1 filed a written statement denying assertions made in the plaint. It is pleaded that the suit land vested in the State of Orissa free from all encumbrances. The plaintiff was not in possession of the suit tank. The suit tank had been recorded as Anabadi in the ROR. The same had not been recorded as Niz Dakhal Khata of the then Zamindar. The ex-landlord had no power to settle the tank in favour of any individual. The plaintiff was not in possession of the suit tank. The suit tank had been recorded as Anabadi in the ROR. The same had not been recorded as Niz Dakhal Khata of the then Zamindar. The ex-landlord had no power to settle the tank in favour of any individual. Thus the lease was cancelled after due service of notice on the ground that the disputed plots are under Anabadi khata and the villagers are in possession of the same. It is further pleaded that the plaintiff filed a petition for fixation of rent before the Tahasildar, Balasore. The same was rejected by the Tahasildar on 16.12.1980. Challenging the said order, plaintiff filed R.F Appeal No.52 of 1981 before the Sub-Divisional Officer, Balasore, which was dismissed on 31.3.1983. Plaintiff filed R.F Revision No.3 of 1983 before the Collector, Balasore. The revision met with same fate and dismissed. After vesting, the Tahasildar had transferred the suit land to the concerned Gram Panchayat. The tank is in possession of Chasakhand Gram Panchayat. The suit tank is a communal land and the villagers are using the suit tank for agricultural purpose from the time immemorial. 5. Defendant nos. 12 to 14 and 16 to 21 and defendant no.15 filed their respective written statements supporting the stand of defendant no.1. Defendant no.3 to 7 filed the written statement supporting the stand of the plaintiff. 6. On the inter se pleadings of the parties, learned trial court struck eight issues. To substantiate the case, the plaintiff had examined one witness and on his behalf thirty documents had been exhibited. No evidence was adduced by the defendants. The learned trial court came to hold that the ROR of the year 1927-28 shows that Choudhury Khetramohan Sahu was the original landlord of the suit holding, but Ext.3, which is the subsequent record-of-right of the year 1931, shows that the suit plot no.124 appertaining to holding no.284 admeasuring Ac.7.79 dec. came to the hand of Nanda and others. There is no material on record as to how the title of the suit plot passed to Nanda and others. The estate vested in the State free from all encumbrances under the Orissa Estates Abolition Act (hereinafter referred to as “OEA Act”). The person in khas possession of any land was to make an application for settlement. There is no material on record as to how the title of the suit plot passed to Nanda and others. The estate vested in the State free from all encumbrances under the Orissa Estates Abolition Act (hereinafter referred to as “OEA Act”). The person in khas possession of any land was to make an application for settlement. Nanda did not make any application till 31.12.1976, i.e., the time limit extended by Government for settlement of the land. Thus the claim of Nanda and his brother over the suit land stood extinguished. Though tenant ledger was opened in the name of Nanda, but it was subsequently cancelled by the competent authority. The suit tank had been recorded as Anabadi in the M.S. ROR. It further held that Sec. 39 of the OEA Act is a bar and the civil court has no jurisdiction to entertain any suit. The plaintiff does not admit title of anybody over the suit land and as such, the question of acquisition of title by way of adverse possession does not arise. Held so, it dismissed the suit. Unsuccessful plaintiff filed RFA No.103 of 2004 before the learned District Judge, Balasore, which was subsequently transferred to the court of learned Addl. District Judge, Balasore and re-numbered as RFA No.15 of 2006. The appeal was eventually dismissed. 7. The second appeal was admitted on the following substantial questions of law; “1. Whether the observation of the learned 1st appellate court that the suit property was an estate and vested in the State of Orissa when O.E.A Act came into operation is contrary to Section 5(a) and 8 of the O.E.A Act ? 2. Whether the finding of the learned lower appellate court that the plaintiff-appellant/ Biswal Brothers have lost right, title, interest over the suit property is contrary to the provisions of G.O No.4610/R dated 18.01.1977 ?” 8. Heard the appellant in person and Mr. Mr. Swayambhu Mishra, learned Addl. Standing Counsel for respondent no.1. None appears for respondent nos.2 to 21. 9. The appellant contended that the suit tank was under the occupation of a group of co-sharer ex-intermediaries. One Chaudhurani Nakphudi Dei had 1/7th share. She had executed a deed of relinquishment in favour of her grand sons Nanda and Gobinda. Mr. Swayambhu Mishra, learned Addl. Standing Counsel for respondent no.1. None appears for respondent nos.2 to 21. 9. The appellant contended that the suit tank was under the occupation of a group of co-sharer ex-intermediaries. One Chaudhurani Nakphudi Dei had 1/7th share. She had executed a deed of relinquishment in favour of her grand sons Nanda and Gobinda. Thereafter, in Partition Case No.26 of 1928-29, the property was partitioned between the co-sharer ex-intermediaries by the Deputy Collector, Balasore under the provision of the Estates Partition Act, 1897. The suit land fell to the share of Nanda and Gobinda. Nanda and Gobinda became the absolute owner of the property. They used to pay rent. At the time of vesting, they filed return before the Collector, Balasore in the name of Nanda only. Tenancy ledger was opened in favour of Nanda. Nanda was the raiyat under the State. Tenancy ledger was cancelled without affording opportunity of hearing to Nanda and as such, the orders passed by the Tahasildar, Deputy Collector and Addl. District Magistrate are bad in law. He further submitted that by virtue of Bengal, Bihar and Orissa and Assam Laws Act, 1912 Act No.7 of 1912, The Estates Partition Act, 1897 (Bengal Act V of 1897) was extended to the former province of Bihar and Orissa except the district of Sambalpur. Referring to the provisions of the Estates Partition Act, 1897, he submitted that the Deputy Collector, Balasore was the competent authority to partition the estate. Under Sec. 5 of the Estates Partition Act, 1897, after partition, the suit tank became the separate estate of Nanda and Gobinda. They became the raiyat of the land. He further contended that after vesting, Nanda became a deemed tenant under Sec. 8(1) of the OEA Act. He was the absolute owner of the suit property. To press his legal necessity, Nanda alienated the suit property to him for a valid consideration and delivered possession. He is in possession of the same peacefully, continuously and as such, acquired title by way of adverse possession. He relied on the decision of this Court in the case of Patta Mohapatrani and others v. State of Orissa and another, AIR 1972 Orissa 248. 10. Per contra Mr. Mishra, learned Addl. Standing Counsel submitted that the vendors of the plaintiff were the ex-intermediaries. Nanda and Gobinda were the proprietors under Sec. 3(v) of the Estate Partition Act, 1897. He relied on the decision of this Court in the case of Patta Mohapatrani and others v. State of Orissa and another, AIR 1972 Orissa 248. 10. Per contra Mr. Mishra, learned Addl. Standing Counsel submitted that the vendors of the plaintiff were the ex-intermediaries. Nanda and Gobinda were the proprietors under Sec. 3(v) of the Estate Partition Act, 1897. They were in possession of the separate estate. They stepped into the shoes of the intermediary. The property so partitioned remained an estate. After coming into force of the OEA Act, the estate vested in the State. Intermediary with reference to any estate means a proprietor, sub-proprietor and other class of persons mentioned therein. Thus Nanda and Gobinda who were in fact proprietors and as such, intermediaries under the OEA Act. They became unsuccessful in all forum. They had no right, title and interest over the suit property. Having unsuccessful in all forum, they alienated the suit schedule land in favour of the plaintiff. The plaintiff has no title over the suit land. The court below on an analysis of the evidence on record and pleadings rightly dismissed the suit. 11. Before adverting to the contentions raised by the appellant, it will necessary to set out some of the provisions of the Bengal Act V of 1897 (The Estates Partition Act, 1897). “3. In this Act, unless there be something repugnant in the subject or context.- xxx xxx xxx (v) “proprietor” includes every person who is in possession of any estate under partition or any portion of such an estate or of any interest in any such estate or in any part of such an estate, as owner thereof, whether or not such person is a recorded proprietor of the estate. xxx xxx xxx 5. (1) If the interest of any recorded proprietor who is entitled to claim partition is an undivided share in an estate held in common tenancy, he shall be entitled to have assigned lo him as his separate estate land of which the assets shall bear the same proportion to the assets of the parent estate as his undivided share in the parent estate bears to the entire parent estate. (2) If the interest of such recorded proprietor is the proprietary right over specific mauzas or lands forming part of the parent estate and held by him in severalty, he shall be entitled to have assigned to him as his separate estate the said mauzas or lands. (3) If the interest of such recorded proprietor consists of an undivided share held in common tenancy in specific mauzas or tracts forming part of the parent estate, but not extending over the whole area of the parent estate, he shall be entitled to have assigned to him as his separate estate land, situated within such specific mauzas or tracts of which the assets shall bear the same proportion to the assets of such specific mauzas or tracts as his undivided share in such specific mauzas or tracts bears to the entire mauzas or tracts : Provided that, if the interest of such recorded proprietor consists of such an undivided share in more than one mauza or tract, he shall not be entitled to have land assigned to him in every such mauza or tract, but the Collector may assign to him as his separate estate land situated in any one or more of the said mauzas or tracts, subject to the condition that the assets of such land are in proportion to the aggregate of the interests which he holds in all such mauzas or tracts. (4) If the interest of such recorded proprietor consists partly of land held in severalty, and partly of an undivided share either in the whole estate or in specific land held in common tenancy, he shall be entitled to have the portion of the common land falling by partition to his share added to the land held by him in severalty, and the estate thus formed shall be assigned to him as his separate estate, so that the assets shall bear the same proportion to the assets of the whole estate as his interest in all the land and undivided shares held by him bears to the aggregate interests of all the proprietors. (5) If the interest of such recorded proprietor is of more than one of the kinds specified in the preceding subsections, land shall be assigned to him as far as possible in accordance with the principles therein laid down. xxx xxx xxx 9. (5) If the interest of such recorded proprietor is of more than one of the kinds specified in the preceding subsections, land shall be assigned to him as far as possible in accordance with the principles therein laid down. xxx xxx xxx 9. No partition of an estate made after the commencement of this Act shall relieve any land from liability to the Government for the total demand of land-revenue assessed upon the estate of which the land forms part, unless the partition is made as herein provided. 10. Except as otherwise provided in this Act, the amount of land revenue assessed on each separate estate shall bear the same proportion to the whole amount of land-revenue for which the parent estate was liable as the assets of such separate estate bear to the whole assets of the parent estate. 11. Subject to clauses (b) and (c) of section 2 of this Act, no partition of an estate shall be made, and no application for the partition of an estate shall be admitted,- (a) if the annual amount of land-revenue for which the separate estate of the applicant would, after partition, be liable would not exceed ten rupees; or (b) if, after separation of the applicant’s interest, the annual amount of land-revenue for which the separate estate of the remaining proprietor or proprietors would be liable would not exceed five rupees; or (c) if the Collector considers that for any reason any of the separate estates would be likely to prove an insufficient security for the payment of the land-revenue which would be separately charged upon it. 12. (1) Any Civil Court which has made a decree for the partition or for the separate possession of a share of an undivided estate paying land-revenue to the Government may, notwithstanding anything in section 265 of the Code of Civil Procedure, cause the decree to be executed in the manner prescribed in section 396 of that Code and if it does so, the joint and several liability of the entire estate for the whole the land-revenue chargeable upon it shall not be prejudiced or affected. (2) If any decree is sent to the Collector for execution under section 265 of the said Code, the execution thereof shall be subject to the restrictions imposed by section 11I of this Act.” 12. (2) If any decree is sent to the Collector for execution under section 265 of the said Code, the execution thereof shall be subject to the restrictions imposed by section 11I of this Act.” 12. On a conspectus of the aforesaid provisions, it is crystal clear that notwithstanding the partition of estate under the Estates Partition Act, 1897 (Bengal Act V of 1897) the ex-intermediary remained as a proprietor. 13. The OEA Act, 1951 was promulgated by the State of Orissa to provide for the abolition of all the rights, title and interest in land of intermediaries by whatever name known, including the mortgagees and lessees such of interest, between the raiyat and the State of Orissa, for vesting in the said State of the said right, title and interest and to make provision for other matters connected therewith. Sec. 2(g) and Sec. 2 (h), which are relevant, are quoted below: “2. Definitions – xxx xxx xxx (g) "Estate" includes a part of an estate and means any land held by or vested in an Intermediary and included under one entry in any revenue roll or any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law relating to the land revenue for the time being in force or under any rule, order, custom or usage having the force of law and includes revenue-free lands not entered in any register or revenue roll and all classes of tenures or under-tenures and any jagir, inam or maufi or other similar grant; (h) “Intermediary” with reference to any estate means a proprietor, sub-proprietor, landlord, land-holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure-holder and includes an inamdar, a jagirdar, Zamindar, illaquedar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State;” (Emphasis laid) 14. Thus Nanda and Gobinda, who were the proprietors, were the intermediaries under the OEA Act. They were not raiyats. Such being the position, after vesting of estate in the State, the State became the paramount owner of the suit property. The same has been transferred to Chasakhand Gram Panchayat. 15. Sec. 5 of the OEA Act provides consequences of vesting of an estate in the State. The same reads thus; “5. They were not raiyats. Such being the position, after vesting of estate in the State, the State became the paramount owner of the suit property. The same has been transferred to Chasakhand Gram Panchayat. 15. Sec. 5 of the OEA Act provides consequences of vesting of an estate in the State. The same reads thus; “5. Consequences of vesting of an estate in the State xxx xxx xxx (a) Subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such Intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of this Act.” 16. The suit schedule property is a tank. In view of Sec. 5 of the OEA Act the tank vested in the State free from all encumbrances. State became the paramount owner of the same. Nanda and Gobinda had no right, title and interest over the same. Nanda and Gobinda having unsuccessful in their attempts before different forum, clandestinely alienated the land in favour of the plaintiff. Thus any sale made in favour of the plaintiff is void. The plaintiff cannot derive any title. 17. The alternative submission of the appellant is that he has perfected title by way of adverse possession is difficult to fathom. Adverse possession is not a pure question of law, but a blended one of fact and law. In Radhamani Dibya and others Vrs. Braja Mohan Biswal and others, 57 (1984) CLT 1 (FB), the Full Bench of this Court held that Sec.8(1) of the OEA Act makes no provision for an application. No enquiry is contemplated under this section. The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before date of vesting. 18. In Karnataka Board of Wakf v. Govt. No enquiry is contemplated under this section. The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before date of vesting. 18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 , the apex Court observed as under : "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” (Emphasis laid) 19. The date of entry into the suit land of the plaintiff has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 20. The date of entry into the suit land of the plaintiff has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 20. Both the courts, on an anatomy of pleading and evidence on record, negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The suit property had been transferred by the State of Orissa to the Nizampur Gram Panchayat. The substantial questions of law are answered accordingly. 21. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.